Loveridge v. Shurtz

Grant, J. (after stating the facts). 1. It was entirely competent for the parties to extend the time to execute the contract by the execution of the necessary papers, and, if the testimony of complainant be true, this was done. Possession was not to be delivered until March 1, 1894. The only disputed question of fact was whether there was a mutual abandonment of the contract. The case was heard .in open court. The parties were in direct conflict upon this point, and we see no reason to disagree with the conclusion of the circuit judge, who heard and saw the witnesses. 2. It is insisted that the mortgage is not sufficiently described in the contract. The description is as follows : “Nineteen hundred dollars on the 15th day of November, 1893, which is to be paid by the assignment of a certain mortgage now held by Shurtz for that amount.” The answer admits the agreement, and that he then owned the mortgage. The proofs clearly identify it. The contention is therefore without force. The assignment of the mortgage would also include and carry with it the notes to which it was collateral. 3, The learned counsel for the defendant insist that the decree is based upon the idea that the title to the property had passed to the defendant; that, in fact, the title had not passed, but remained in complainant; that complainant can have no lien upon his own property, and therefore the decree cannot be sustained. The decree establishes the existence of the contract, and that the defendant has an interest in the land. A vendor, as well as a vendee, is entitled to specific performance. If the defendant had made large payments, the complainant [621] would be entitled, upon failure to make further payments when due, to file his bill for specific performance, and in the nature of a foreclosure bill, and in such case would be entitled to a sale of the land and decree for deficiency. Clark v. Hall, 7 Paige, 385; Corbus v. Teed, 69 Ill. 205. 4. It developed upon the hearing that the defendant had sold and assigned the mortgage. The decree permits him to obtain the mortgage, and assign it to complainant, and, in default thereof, to pay the $1,900 in cash, and to execute the mortgage for the residue. If he declines this, then the decree treats the whole as due, and authorizes a sale for the entire amount. This is equitable and right. The decree is affirmed, with costs. The other Justices concurred.