Sterricker v. McBride

Mr. Justice Baker delivered the opinion of the court: We will assume (but for the purposes of this appeal only) that the intent and scope of the executory contract of April 28, 1888, were that the “seam” mentioned in and contemplated by said contract was a “seam” located in the south part of the premises that day sold and conveyed to appellees. What premises were so sold and conveyed? The pi'eamble to the contract says that they were block 16 and a strip of land two rods wide originally platted for a street and lying immediately north of said block 16, and all that piece of land lying between said block and Fox river. The desire of appellees, as stated in the preamble, was simply to secure additional land to the south in the event they were “unable to find a seam in the quarry on said premises,” — ! e., on the lands then conveyed; and the option given by the contract, of making an additional purchase, was one that could be availed of only “if the said second party does not find such a seam on the land so conveyed to them.” The strip of ground sixty-six feet wide lying south of block 16 and north of block 15 was platted and designated as Kane street. The provision in the contract for the future and contingent conveyance to appellees of this land between said blocks, “known as Kane street,” seems to indicate, quite clearly, that it was not the understanding of the parties that Tefft, by the deed which he made to appellees for block 16, conveyed or transferred to them any part of said strip, and other language in the contract points in the same direction. But it is claimed by appellees that the lands platted by Tefft & Raymond were never embraced within any municipal corporation; that the making of the plat was only an offer to dedicate, which was never accepted by the public authorities, and that the so-called North street and Kane street were never used or traveled as streets or highways by the public, and that the conveyance to them (appellees) of block 16, which was abutting property, transferred to them the title, by operation of law, to the center line of each of these once platted streets. The contention is, that the warranty deed of April 28, 1888, for block 16, conveyed to them the north half of the land designated as Kane street, and the subsequent deed, after the death of Tefft, to the South Elgin Stone Company of lot 15, had the effect of conveying the south half of said strip to that company. Of course, if the one deed had the effect of working such conveyance to” the one party, the other deed had the effect of working a like conveyance to the other party. The case of appellees is in a dilemma. If the fee simple title to the north thirty-three feet of Kane street passed to appellees by reason of their deed from Tefft, then, under the option contract of April 28, 1888, they are not entitled to the right and privilege of purchasing all or any part of the north half of block 15 and of exacting a quit-claim deed that covers the south half of the land between blocks 15 and 16 that is known as Kane street, because, by the terms of the contract, such rig'ht and privilege are only conditional, and are expressly limited thereby to accrue to them only in the event they are unable to find a seam in the quarry on the land and premises conveyed to them by the deeds of April 28, 1888, and the evidence is clear and conclusive that they have never removed the soil from the north half of the land designated as Kane street and to the center line of said land, and demonstrated that no seam would or could be found on said north half. In fact, the evidence shows that the indications are that there is a seam either on said north half or immediately south of it; and if there is a seam on said north thirty-three feet, then it is perfectly manifest that they have no legal or equitable right to maintain a bill for specific performance, or to the decree awarding them conveyances for the north half of the north half of block 15 and the south half of Kane street. We are unable to appreciate the force of the argument of appellees that they are the owners in fee of the north half of this strip of land, but subject to the easement of the owner of the adjoining land in block 15; that while there is no public highway or right of passage that the public can assert to the strip of land called Kane street, yet so long as Tefft or any third party held any part of the land in block 15 bordering on the line of the strip, he or such third party had the right to have the strip, for its entire width, kept open for access to that portion of the block, and that until appellees had decided to purchase the land mentioned in the contract, and had received, or had become entitled to receive, a conveyance therefor, they could not legally enter upon or appropriate the north half of this strip to themselves. This argument proceeds upon the assumption that there is no street there. If there is a street, then not only Tefft and those holding block 15 under or through him, but the public, had and have a right to insist it should be kept open, and a right to use it at will in passing and repassing. If it was and is a public street, then it was and is a public street for all legitimate purposes of such a street. If it is not a public street, then when Tefft executed and delivered a deed which conveyed the north half of it to appellees, and made no reservation of an easement therein to himself, or for the benefit of his property in block 15, there was no easement, or right to use it for the purpose of passing and repassing to and from block 15. Tefft was the owner of the whole of block 15, as an entirety, and the South Elgin Stone Company, through him, is the owner of the whole of said block as an entirety. There was and is free access to the block by way of LaPox street on the west and Stone street on the south, both of which are admittedly open and public highways, and by way of what is designated as Water street on the east. On the other hand, there is practically no access to the block by means of Kane street, because said street is low, wet and swampy, and is impassable on account of a deep gully, which forms part of an abandoned stone quarry. But even if said street were or could be made otherwise, yet ample means are afforded of reaching the block on the north by way of the south half of the strip, said south half being two rods wide. This thirty-three feet of ground being between block 15 and the land and premises that, according to the claim of appellees, were conveyed to them by the deeds from Tefft, it necessarily follows that the strip of ground that forms the north half of Kane street not only does not adjoin block 15, but is so located that there would and could be no occasion for passing over it in order to get to and from said block on its north side. The theory of appellees on this branch of the case seems to be, that block 15 was and is the dominant, and the strip designated as Kane street the servient, estate, and that the latter was and is burdened with an easement for the benefit of the former. And it is also a part of their same theory that Joseph Tefft, at and before the time of the sales to and contract with them, the appellees, was owner and in possession of blocks 15 and 16, and the land four rods wide that lies between them. If so, the rule that when the dominant and servient estates are united in the same person the easement is extinguished, is applicable to the case, and it is not deducible from the language used in the warranty deed.for block 16 that it was the intention of Tefft to create a right, in the nature of a servitude or easement, in any of the property conveyed for the benefit of block 15. The other horn of the dilemma is equally fatal to the validity of the decree. If the titles to the north half and to the south half of the land designated as Kane street did not vest in appellees and the South Elgin Stone Company, respectively, by virtue of the deed to the former for block 16 and the deed to the latter for block 15, then it must either be that Tefft & Raymond, by their plat of Clintonville, dedicated the strip of land in question to the public for street purposes, and such dedication remained in abeyance, and operated as a continuous offer to so dedicate, until the township authorities accepted the dedication and the commissioners of highways commenced to improve the street, or that the title to the strip is vested in the heirs of Joseph Tefft. If Kane street is a public street and highway, then, of course, appellees cannot have a specific performance of the contract of Tefft for the conveyance of said street to them, or a perpetual injunction enjoining the commissioners of highways from entering upon and improving such street. And on the other hand, if the title to the land known as Kane street is in the heirs of Joseph Tefft, deceased, then such heirs are necessary parties to the suit, in order to give the court jurisdiction to adjudicate the matters in controversy. There is another ground upon which the decree is clearly erroneous. Appellees tendered to' the South Elgin Stone Company only the sum of §241, and the court found that to be a sufficient tender, and decreed the execution of deeds to appellees upon the payment of said sum. of §241. As we understand the contract and the record, the tender made and the sum required to be paid are wholly insufficient in amount. The contract gives to appellees the privilege of purchasing “so much of the north one-half (£) of block fifteen (15) * * * as they may desire to purchase.” It also contains this further provision: “The first parties also agree to convey, by quit-claim deed, with the above, land between blocks sixteen (16) and fifteen (15), known as Kane street, and all that land between Kane street and that part of block fifteen (15) so purchased, on the one side, and Pox river on the other, at the same price per square rod as has been paid for the said land this day conveyed to said parties, to be paid as follows: cash in hand when possession is taken, — the said north half of said block fifteen (15), or any part thereof, as the case may be, to be conveyed by warranty deed and the other premises by quitclaim deed.” As has been hereinbefore seen, “the said land this day conveyed” is stated in the preamble of the contract to be not only block 16, but also the land immediately north thereof, two rods wide, originally platted for a street, and the land between said block and Fox river. It is conceded that the “price per square rod” paid for the land first bought was $5, and the tender that was 'made by appellees to the stone company was $5 per square rod for the number of square rods contained in the north half of the north half of block 15. It is also an admitted fact that $1200 was the price paid by appellees to Tefft for the land bought and conveyed on April 28, 1888. The plat in evidence shows that block 16 is 330 feet from east to west by 167 feet from north to south, and that North street is two rods wide and is 330 feet in length, from LaFox street to the east end of block 16. We find nothing in the record to indicate the width of the land lying between said block and Fox river, but, judging from the plat, it was probably regarded as insignificant, and not taken into the account. North street contains forty square rods of land, and that street and block 16, taken together, contain but a few feet more than 240 rods of land, and 240 square rods of land, at $5 per square rod, amounts to $1200, — the exact price that was paid for the land deeded to appellees at the time of the first purchase. As the quit-claimed land contained in North street was taken into account in computing the purchase money then paid, and as by the executory contract appellees were to pay for the land on which the option was given the same price per square rod as was paid for the land then conveyed to them, it necessarily follows that the price of the square rods of land located in Kane street, at $5 a square rod, was also to be included in the purchase money to be paid in the event appellees desired to avail of the privilege of buying contained in said contract. It is true that $1200 was inserted in the warranty deed for block 16 as the consideration money, and also that the nominal consideration of one dollar was stated in the quit-claim deed. But the rule is, that -the recitals in a deed in regard to the consideration may be inquired into in any way, provided it is not sought to impair the effect of the deed as a conveyance. (Illinois Central Ins. Co. v. Wolf, 37 Ill. 351; Morris v. Tillson, 81 id. 607.) It is also true that one of the appellees, in his testimony, after first testifying that the consideration for the two conveyances of April 28, 1888, was $1200, says, in answer to a question asked by his counsel: “One thousand two hundred dollars was the price of the block; then he gave me a quit-claim deed of a piece of land on the north side of the block and on the east of it; $1200 was the consideration for the land described.” But we regard this ambiguous and unsatisfactory testimony as of little weight as against the evidence afforded by the contract itself, and the plat of the land, and the deeds. There are other questions of interest that arise upon the record, but a consideration of them is not necessary for the purposes of this appeal. And as it appears that other persons, who are not parties to this suit, are interested in the subject matter at issue and involved in said questions, we refrain from any decision upon them. For the errors indicated herein, the decree is reversed and the cause is remanded. Reversed and remanded.