Hunt v. Smith

Citations

• 139 Ill. 296
• 28 N.E. 809

Syllabus

<p>1. Contract—failure to perform—right to rescind—mutuality. A contract for the sale of city lots provided that in case the title, on examination, should be found defective, then, unless the material defects-should be cured in sixty days after written notice thereof, earnest money which had been paid should be returned and the contract become inoperative ; and also, that if the purchaser should fail to perform the contract promptly, at the time and in the manner specified, the earnest money paid should, at the option of the vendor, be forfeited as liquidated damages, and the contract should become void : Held, that the failure of either party gave the other the right to rescind, but not for his own failure to perform the contract.</p> <p>2. In such case, the failure of the vendor to remove defects in the title within the time limited gave the vendee the right to rescind, if he so elected, but did not authorize the vendor to declare a rescission, and thus free himself of his obligation to sell and convey a good title. The véndee might still insist upon a specific performance of the contract.</p> <p>3. Specifici performance—contract to convey good title—rights of purchaser. Where a party agrees to convey to another a good title to land, he agrees to convey an unincumbered title; and a decree for the specific performance of the contract is not open to the charge of making and enforcing a new and different contract than that of the parties, because it requires the vendor to remove an incumbrance on the land, and on his failure to do so allows the purchaser to lift the same out of the purchase money.</p> <p>4. Same—contract to convey—of decree authorizing vendee to remove incumbrances. On bill for the specific performance of a contract for the sale and conveyance of a good title to land, which was subject to a mortgage for the payment of money, the court, among other things, required the vendor and his grantee with notice to make and file with the clerk of the court a w