Bennett v. Giles

Mr. Justice Hand delivered the opinion of the court: It is clear under said option contract, which contract is set out in the Appellate Court opinion above referred to, that said Sarah J. Giles had the right, at any time subsequent to the date of the contract and prior to October 1, 1900, to repurchase the premises from Myrtie S. Bennett upon the payment to her in cash of $2850. If, however, prior to such re-purchase Myrtie S. Bennett placed an encumbrance on the said premises, (which she reserved the right to do in the option contract,) Sarah J. Giles agreed, in case she accepted said option and re-purchased the premises, to take the premises subject to said encumbrance, and in that event to pay to Myrtie S. Bennett the difference between $2850 and the amount of the encumbrance. The evidence shows that Sarah J. Giles had no money with which to re-purchase the premises, and that she made an arrangement with her daughter, Charlotte L. Kimberly, to furnish the funds with which to re-purchase said premises; that Mrs. Kimberly offered to furnish the $2850 necessary to re-purchase said premises provided the $2500 trust deed was released as a lien thereon, but refused to furnish the money with which to pay the difference between the sum of $2850 and the amount of said $2500 note and trust deed. After Myrtie S. Bennett had encumbered the property with a trust deed due five years from October 1, 1899, it was impossible for her to convey the property free of all encumbrances without the release of said trust deed, and as the option was to expire on October 1, 1900, four years before the trust deed would fall due by its terms, the said trust deed having been placed upon the property in accordance with the express provision of the option contract, after the execution of said trust deed it is clear the only option remaining in Sarah J. Giles to re-purchase said premises was to take the same at the agreed price of $2850, less the amount of the said trust deed, which option she was bound to exercise prior to October 1, 1900. • She not only failed to exercise such option prior to October 1, 1900, but some two weeks prior to that date Mrs. Kimberly, who was to furnish the money and who represented her mother, abandoned the option contract and agreed that she and her mother would vacate the premises. Time was made the essence of the contract, and we think it obvious that the complainants were entitled to no relief under the original bill, but are of the opinion the same should have been dismissed, and that a decree should have been entered in favor of the complainant in the cross-bill canceling said option contract as a cloud upon her title. It is urged that the complainants were misled by the claim of Myrtie S. Bennett that she was the owner of the $2500 note secured by said trust deed. While such was the claim of Myrtie S. Bennett, she repeatedly stated to the complainants and their solicitor that she did not have said note in her possession; that it was claimed by other parties, and that she was unable to obtain the possession thereof or to procure a release of said trust deed, and the complainants were advised a bill had been filed by the First National Bank of Waterloo in the circuit court of Cook county to foreclose said trust deed, to which suit Sarah J. Giles, George T. Giles and Myrtie S. Bennett were parties. Sarah J. Giles consented, at the time she took the option contract, that the property might be encumbered by Myrtie S. Bennett to the amount of more than the amount of the $2500 note, and when she sought to exercise the option to re-purchase she knew the title to said $2500 note was in dispute between the First National Bank of Waterloo and Myrtie S. Bennett. It made no difference to her who was the owner of that note. Under the contract all she was required to pay for the property was $2850. If she desired to re-purchase the property under the contract she should have taken it subject to the provisions of the contract,—that is, paid Myrtie S. Bennett the difference between $2850 and the amount of the $2500 note and taken the premises subject to the $2500 encumbrance thereon. This she failed and refused to do, and thereby forfeited her right to re-purchase said premises under the said option contract. The defendant to the cross-bill, Mary Corcoran, occupied no better position than Sarah J. Giles, of whom she purchased the property pending this litigation. The decree of the superior court will be reversed and the cause remanded to that court, with directions to enter a decree in accordance with the views herein expressed. Reversed and remanded, with directions.