Waggoner v. Saether

Mr. Justice Craig delivered the opinion of the court: The argument of plaintiff in error with respect to the contention that the court overruled the demurrer on January 19, 1914, and entered a decree pro confesso against the plaintiff in error, is based upon a misconception of the office and ñmction of a certificate of evidence and the matters which may properly be preserved and shown by the same in a chancery case. The pleadings, motions, orders and the ruling of the chancellor thereon in a chancery case, which are a part of the record proper, have no place in the certificate of evidence and cannot be shown in that way. The function of a certificate of evidence, as its name implies, is to preserve and set forth the evidence offered, received and considered or rejected by the chancellor on the hearing. Its sole function and only object is to preserve such matters as are not a part of the record proper and which otherwise would not become a part of the record. The motions and orders made in the course of the proceedings, and the rulings, of the chancellor thereon, are a part of the "record proper, and hence as inoperative and as much out of place in a certificate of evidence in a chancery 'case •as a statement of the pleadings and the rulings of the court thereon would be in a bill of exceptions in an action at law. The reason for this, as stated in Flaherty v. McCormick, 123 Ill. 525, is, that “all oral motions in a chancery cause should be, and are supposed to be, noted upon the clerk’s docket and a minute thereof made by the judge himself, and the motions, together with the orders made thereon, should be duly entered of record by the clerk in making up his orders in the case. By this means they become a matter of record without the aid of a judge’s certificate or bill of exceptions, as is required in a case at law. So where a motion is reduced to writing and filed in the cause it is then as much a part of the record as anything else in it, and the setting it forth, therefore, in such a certificate would add nothing to its force or validity.” Neither does the oral announcement or remarks of the chancellor expressing his opinion on the question at issue constitute the decree of the court, and they are of no binding force unless embodied in the decree and filed with the clerk, to be entered in the records of the court. (5 Ency. of Pl. & Pr. 1046; Hughs v. Washington, 65 Ill. 245; Paltzer v. Johnston, 213 id. 338; Fraher v. Brazelton, 12 Lea, 278.) As said by this court in Hughs v. Washington, supra: “The mere oral announcement of the chancellor of his decision and the grounds upon which it is based,. or the reducing them to writing, is no more than the minutes taken in the English practice. The whole matter is completely under the control of the chancellor until the final decree has been filed or recorded. Until that time he may alter, amend, change, or even disregard, all that he had said in his minutes. * * * There was, then, no decree of the court until it was approved and filed.for record or was recorded.” And in Fraher v. Brazelton, supra, the court said: “While in this case the chancellor had announced the decree, still none had been entered and signed. It was still in the breast of the court, and there was nothing of binding force, in any sense, upon the chancellor or the parties.” Precisely the same thing is true in the case at bar. While the chancellor may have announced what his ruling would be on the demurrer to the cross-bill, no order to that effect was made. The only order the record shows was the one with reference to the demurrer of Sporron to the original bill, which was overruled on the motion of plaintiff in error and a rule entered upon Sporron to answer the same within ten days. The record, as exhibited to us by the' transcript, imports verity. (Wolf v. Hope, 210 Ill. 50.) The transcript filed in 'this court not only shows no hearing had on the demurrer on January 19, 1914, but a hearing on the same at a much later date, at which time the demurrer was overruled and a decree pro confesso entered against plaintiff in error. We find nothing in the record proper to indicate a hearing was had on the demurrer to the cross-bill ón January 19, 1914, and a decree pro confesso entered on that date, or that the court permitted amendments to be made to the cross-bill after it was taken as confessed as to plaintiff in error. As to the other contentions made by plaintiff in error, the decree finds Field had conveyed the property described in his contract to Hill, who holds title to the same by an unrecorded deed, and that Hill, in turn, contracted to sell the same to plaintiff in error under' a contract which authorizes him to pay the whole amount of the consideration at any time and have the property conveyed to him. Hill was made a party defendant to the cross-bill and filed a disclaimer, thereby disclaiming all interest in the subject matter of the suit. (Mitford & Tyler’s PI. & Pr. in Eq. 111, 202.) He is therefore not in a position to complain of the decree requiring a conveyance of the premises to defendant in error. Neither Scholz nor Welch raised any objections to performing their contract with Hill (who subsequently contracted to convey the property to plaintiff in error) nor to directly conveying the property to defendant in error, and plaintiff in error cannot be heard to raise objections to the decree which might be urged by them but which in no way injuriously affect his rights in the premises. Plaintiff in error was the equitable owner of the property under an existing valid agreement with the owners of the legal title to convey the same to him, and the court therefore had jurisdiction to decree a conveyance directly to defendant in error. Such owners were joined as parties to the suit and submitted themselves to the jurisdiction of the court. (36 Cyc. 375; Keys v. Test, 33 Ill. 316; Borders v. Murphy, 78 id. 81; Fleming v. Carter, 87 id. 565.) “In contracts for the sale of land the doctrine in equity is, that from the time of contract the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase money, a trustee for the vendor, who has a lien upon the land therefor. In equity the vendor is treated as the owner of the money, and is deemed to stand seized of the land for the benefit of the purchaser.” (Fuller v. Bradley, 160 Ill. 51, and cases cited.) Plaintiff in error, being the equitable owner of the fee, could dispose of that interest either by an assignment of his contract for a deed or by the execution of a new contract in which he agreed to convey the same. In either event, so long as the equitable title is in him, upon the performance of the contract by the other party a court of chancery had jurisdiction to decree specific performance of the contract on the part of plaintiff in error or on the part of those holding the legal title for his benefit. Plaintiff in error argues that the contracts in question are not contracts for the conveyance of real estate, but, on the contrary, are only contracts to procure the execution of articles of agreement for warranty deeds, and, therefore, that they cannot be specifically enforced as contracts for the conveyance of real estate, although the evidence shows that at the time the contracts were, made and the bill was filed plaintiff in error was the equitable owner of the property which he contracted to convey. The language of the contracts is not susceptible of such a strained and unnatural construction. The contracts clearly were not so understood by the parties. In the first sentence each contract provided that plaintiff in error agrees to sell and defendant in error agrees to purchase at a fixed price certain real estate therein described. The language used is plain and unambiguous, and we are unable to see how the agreement on the part of the one party to sell and of the other party to buy could have been set forth in more apt or appropriate language. That the contracts also contain provisions for the furnishing of an abstract of title or a title guaranty policy, together with articles of agreement for a warranty deed in the event the defendant in error elected to pay the balance of the purchase price in deferred payments in installments of $25 or more per month, makes them none the less contracts for the purchase and sale of real estate. The agreement of purchase and sale is not negatived by those provisions, although the time for the final consummation of the transaction may thereby be postponed for a time, at the election of the defendant in error. The provisions for the furnishing of an abstract of title or a title guaranty policy, and of a deed providing for the payment of the balance in installments of $25 or more per month, manifestly were inserted in the contracts for the benefit of the defendant in error, and were not intended to serve as a loophole through which the vendor could escape from a compliance with the contract, or to afford a means with which to swindle and defraud defendant in error out of the earnest money she had advanced in good faith in the purchase of the property.. To give the contracts the effect contended for by plaintiff in error would be to assist in perpetrating a fraud, and if it was the intent of plaintiff in error to defraud defendant in error, she frustrated such design by offering to take the property and by producing the money and demanding a deed. In any event, the contract provided for a payment of $25 a month or more, so there was no limit to the amount defendant in error could pay, up to the entire balance due, at any time. She had the right to waive the provisions for monthly payments, guaranty of title and contracts for deeds and elect to pay the full amount of the consideration in cash and demand a deed.of the property. Upon making such election and tendering the full amount of the purchase price she became entitled to a deed conveying the land to her. The decree finds she has made such election and has tendered full performance of the contract on her part. At this time the equitable title to the property was vested in plaintiff in error, and under the rule announced in the above authorities the court properly decreed a conveyance of the property in question directly to defendant in error. It is also insisted in argument that the court erred in decreeing the payment of $260 to- Sporron for his services in procuring the sale of the property to defendant in error. It appears from the record that Sporron was made a party both to the original and cross-bills and was thus required to come into court and set up his rights in the premises. No certificate of evidence is contained in the record, and the finding of facts in the decree is sufficient to .warrant the court in entering such a decree as would adjust and finally dispose of the rights of all parties before the court in the subject matter of the transaction. Nor is any error assigned on the record which in any way calls in question this part of the decree. The question, therefore, is not before this court and is not open for review. Anglo-Wyoming Oil Fields v. Miller, 216 Ill. 272; Berry v. City of Chicago, 192 id. 154; Skakel v. People, 188 id. 291; Gibler v. City of Mattoon, 167 id. 18. For the reasons given, the judgment of the superior court of Cook county will be affirmed. Judgment affirmed.