Dulin v. Prince

Citations

• 124 Ill. 76
• 16 N.E. 242

Syllabus

<p>1. Contract—to procure homestead right—construed, as to character of right intended. One party to a written contract agreed to procure for the other “a good right to the north-east quarter of section 26, town 13, range 23, in Trego county, Kansas, as a homestead.” The proof showed that the parties had in view government lands, and that the right of homestead in contemplation was that secured by the United States laws to set--tiers: Held, that the covenant was only to procure for the covenantee the Tight to become an occupant of the tract as the claimant of a homestead, •and not to procure the title.</p> <p>2. Specific performance—refusal to perform, rendering an offer to perform by the other parly a useless act. A agreed in writing to convey to B twenty acres of land in this State, in consideration that the latter should procure for the former a good right to a certain quarter section of land in the State of Kansas, as a homestead, under the United States law. A wholly abandoned the contract and refused to perform it before the date at which B was required to or could have procured the homestead right: Held, ■on bill by B for a specific performance of the contract to convey the twenty acres, that no tender of the homestead right was necessary to the relief ■sought.</p> <p>3. And in such case, the fact that the homestead right was forever lost -through the non-compliance of A with the contract, and had ceased to exist, furnished no ground for the court to refuse to decree a specific performance ■of the contract by A.</p> <p>4. Practice—time to object—for va/ria/iice. An objection that there is .a variance between the allegations in a bill and the proofs, comes too late on appeal or writ of error. It should bo made in the trial court before the •case passes beyond its control.</p>