Druecker v. McLaughlin

Mr. Justice Vickers delivered the opinion of the court: ■ We have been saved much labor by the able and exhaustive briefs of counsel. They have each accurately located the pivotal question involved and concentrated their argument upon it. Chancellor Kent says: “If it be doubtful whether a clause in a deed be a covenant or a condition the courts will incline against the latter construction, for a covenant is far preferable to the tenant.” (4 Kent’s Com. p. 132.) This rule is recognized in our State. (Gallaher v. Herbert, 117 Ill. 160.) The intention of the party to the instrument, when clearly ascertained, is of controlling efficacy, though conditions and limitations are not readily to be raised by mere argument. The question is one not depending so much upon artificial rules of construction as upon the application of good sense and sound equity to the object and spirit of the contract. (Post v. Weil, 115 N. Y. 361; 5 L. R. A. 422.) The absence of a re-entry clause, while not indispensable, is always important as evidence of an intention to impose a condition subsequent. Such a clause may make'certain that which in its absence is left open to construction. (Koch v. Streuter, 232 Ill. 594.) The intention is to be determined from the language employed, when read in the light of the context of the instrument and such" surrounding circumstances as will aid the court in arriving at the true intent and meaning of the parties. Thus read, to our minds it is perfectly apparent John Druecker never contemplated a reversion of this title to him in case .the strip of land in question should not be kept open for a private way. The reasonable explanation of Druecker’s action is found in the natural desire that he had to facilitate the sale and enhance the value of the lots in this subdivision. He did not dedicate any streets on either side of the subdivision, although it was clearly necessary that streets should be both on the north and the south. If he had dedicated the streets the lot owners could receive nothing from condemnation proceedings. By the method he adopted he received all the advantages of a sale of lots opening upon a public outlet, and at the same time it was provided by the creation of a trust as to one part of the lots and by the conveyance in question as to the others, that the purchasers of lots would receive an equitable share in the condemnation money arising from the opening of a street. The subsequent events confirm the business shrewdness of his Scheme. All the persons to whom Druecker sold lots in this subdivision received their pro rata share of the damages awarded in the condemnation proceeding and at the same time have Oakdale avenue located, and opened where it is most beneficial to their respective lots. John Druecker could have no possible interest in keeping the strip of land in question open as a private way after he had sold all of the lots he owned in this subdivision. The clause in question was clearly inserted in the deed for the benefit of the owners and occupants of lots in Hussander’s subdivision. It is not necessary to determine in this proceeding whether there is any easement or servitude imposed on the land in question by virtue of the grant and covenant which might be enforcible by the owners and occupants of the lots for the benefit of which the limitation in question was made, since none of such owners or occupants are here asking any relief. We think that the clause under consideration is a covenant made for the benefit of the owners and occupants of the lots in this subdivision, and that cross-complainants have no interest whatever in the premises. Appellant’s contention that in order to create a covenant obligatory upon the grantee in a deed it is necessary that the grantee should sign and seal the instrument is not the law in this State. (Sanitary District v. Martin, 227 Ill. 260.) A grantee who accepts a deed with a covenant imposing duties upon him is as much bound by such covenant as though he had signed and sealed the deed. Cross-complainants have no interest in the land in question, and the court properly sustained the demurrers to their cross-bill. The decree of the circuit court of Cook county will be affirmed. Decree affirmed.