Kincaid v. Dobrinsky

Mr. Presiding Justice Dibell delivered the opinion of the court. John F. Kincaid and others agreed to sell certain real estate to Charles Dobrinsky. When the time came to pass the title, abstracts of title had not been furnished and it was agreed that $600 of the purchase money should be deposited with Central Trust & Savings Bank of G-eneseo, Illinois. That bank issued the following memorandum therefor: “$600 March 2, 1908. Received of John F. Kincaid Six Hundred Dollars to be paid to him when long form abstract showing-clear title and title and abstract approved by Harry E. Brown of land sold this day by Kincaid and others to Dobrinsky. Arthur Cook, Cashier.” Afterwards John F. Kincaid brought this suit upon said instrument against the bank and Dobrinsky in the county court of Henry county, and filed a declaration on March 31,1911. The first count charged the making of said instrument and that plaintiff furnished Dobrinsky abstracts of title in long form, showing clear title in the grantors in the deed to Dobrinsky, and Brown without any good reason refused to approve the abstracts, and the bank at the instigation of Brown and Dobrinsky refused to pay the money to plaintiff. The second count charged the fumi'shing of the abstracts and the refusal of Brown to approve the title and that Dobrinsky afterwards sold and conveyed all said lands by warranty deed and thereby disabled himself from rescinding the deed to himself, and thereby asserted the title to be a good title in fee, and is estopped from denying the validity of the title which he received. The third and fourth counts were common counts and were afterwards dismissed by plaintiff. Each defendant filed a plea of the general issue and a plea denying joint liability with the other defendant. A jury was waived. The cause was tried and there was a finding and a judgment dismissing the suit as to Dobrinsky and in bar as to the bank. Plaintiff appeals therefrom. The contract sued on called for an abstract showing clear title. The first question is what title was thereby intended. That' particular expression is not common in such, agreements and has not often been judicially construed. In Roberts v. Kimmons, 65 Miss. 332, 3 So. 736, it was held that an agreement to make a title “clear and satisfactory to the purchaser” meant a title free from valid objections aryl such a title gs a purchaser would have a right to without that stipulation. We conclude that so far as those words are concerned, they meant only that abstracts should be furnished showing merchantable title in the grantors. The question what is required to comply with a contract to furnish abstracts showing merchantable title to real estate has recently been passed upon by our Supreme Court in Koch v. Streuter, 232 Ill. 594; Attebery v. Blair, 244 Ill. 363; Geithman v. Eichler, 265 Ill. 579; and Lamotte v. Steidinger, 266 Ill. 600. Without stating in detail what is there decided, it is sufficient to say that many of the objections made by Brown to the abstracts of title in this case are held not valid objections. Brown objected to these abstracts because they did not show the issue of any patent by the United States G-overnment. That was not a valid objection under the foregoing authorities. There were many objections of a minor character to the form of acknowledgment of very ancient deeds, which under the foregoing authorities do not render the title nonmerchantable. The contract required that the title and abstracts should be approved by Harry E. Brown. Appellees contend that Brown was thereby constituted the umpire between the parties, whose decision, made in good faith, was binding on the parties. There is strong reasoning in support of that position in some of the authorities relied upon by appellee. We, however, conclude that it should only require the furnishing of abstracts of title which would be approved by a reasonably good lawyer who was acting in entire impartiality between the parties. Brown was acting at that time as attorney for Bobrinsky, the purchaser, and he drew or dictated this contract. In a letter from Brown to plaintiff, dated August 26, 1908, Brown stated that Dobrinsky wanted every single defect cured that anybody could object to. He appeared for the defendants in the earlier stages of this case. Before this suit was begun Dobrinsky conveyed all these lands to another party. He could no longer rescind the contract of sale and reconvey the premises to those who had sold to him. Under such circumstances Brown ought not to be treated as the final umpire as to the validity of this title. There are various respects, however, in which the abstracts do not show merchantable title. A guardian’s deed appears in the chain of title, based upon some court proceeding. The abstract should have shown enough of the record in that proceeding to show the court had jurisdiction of the subject-matter and of the parties whose interests in the land were sold and the decree of sale and the report of sale and its confirmation by the court. None of these appears. There is in the chain of title an administrator’s sale without any abstract of the judicial proceedings under which that sale was conducted. In these two cases the deed, to be valid, must have been supported by decrees of court having jurisdiction of the subject-matter and the parties, and that should have been made to appear of record. These objections are not obviated by the fact that these deeds were executed many years ago. Fell v. Young, 63 Ill. 106. In the abstract of one instrument appears a certified copy of a will but nothing to show that it was admitted to probate. There is an instrument released by an attorney in fact, without any power of attorney appearing of record. An attempt was made to remove one objection by having an instrument reacknowledged, and it was tendered back to Brown in that condition. It should have been rerecorded and entered again upon the abstract. One or more affidavits were tendered to cover certain defects. They should have been recorded and entered upon the abstract. This was not done. In onr opinion the abstracts did not show clear title nor merchantable title in the vendors, and for that reason plaintiff could not recover upon the contract when the suit was brought or tried. Defendants were defaulted and afterwards that default was set aside and they filed the pleas above stated. Appellant contends that defendants were limited to the matters set up in the affidavits to vacate the default and especially in the last affidavit, which secured that result, the motion to vacate the default having been denied on the showing made before that. To this we think there are several answers. The abstract of this record professes to say that the bill of exceptions begins on page 16 of the record. There is nothing to show that the bill of exceptions begins on page 16. As we interpret the record the bill of exceptions begins on the page which is numbered in the record both 44 and 45. The supposed affidavits in support of the motion to.vacate the default are prior to that in the record and appear merely to have been copied into ’the record by the clerk, intermingled with his court orders. If so, the clerk had no power to preserve these affidavits in that way and they are not a part of the record. If so, it does not appear upon what showing the default was vacated. Again, we are of the opinion that these affidavits, if in the record, did not restrict the defense. No affidavit of claim was filed with the declaration and defendants were not required to file an affidavit of their defense. But, further, plaintiff was still obliged to prove his case, and he did not raise this point at the beginning of the trial and ask for judgment without proofs, but he put in all of his evidence. Defendants did not put in any proofs, but relied upon the insufficiency of plaintiff’s proofs. As we hold that plaintiff did not prove that he had tendered abstracts showing that a clear title or a merchantable title had been conveyed, as this contract requires, the question whether defendants were limited by their affidavits is immaterial. Defendants also urged that’this instrument sued on is the contract of Arthur Cook and not of the bank. Under some circumstances such a signature might not bind the bank, but it is the usual form for signing bank drafts. There is proof in the record that the agreement was that this $600 should be deposited in the bank, and there is proof that the bank still had the money at the time of trial, although Cook had ceased to be its cashier. Under that proof the suit was properly brought against the bank. The bank and Dobrinsky were not jointly liable on this contract. Brown, though not now an attorney in this case and hot a party to it, entered a motion in this court to expunge from appellant’s brief certain reflections upon himself, and that motion was taken with the case. Appellant’s brief has treated Brown with what seems to us undeserved severity. It quotes a part of an affidavit made by him and alleges it to be perjury, whereas,, when the whole affidavit is read, it seems to us not subject to the construction appellant puts upon it. Still, Brown’s good faith in passing on the title was a material question in the case and was subject to discussion by counsel, and thefefore we cannot well expunge anything from the briefs of appellant. It seems that appellant employed Brown to make the abstracts and Brown did make them and sent them to appellant’s attorneys and they made copies of Brown’s abstracts and had them compared and' proven to be copies and then offered the copies in evidence with proof of the comparison, but apparently without paying Brown for making the abstracts. Brown is not a party and we cannot determine as between Brown and appellant whether any remedy should be afforded to Brown for that. Under the contract and the proofs made, the abstracts offered seem to have been admissible. Appellant presented propositions of law and it is claimed that the judgment is not consistent with the ruling of the court holding one of those propositions. As plaintiff did not establish a case under the contract, we think the supposed inconsistency of the propositions is immaterial. The judgment is affirmed. Affirmed.