Page v. Greeley

Citations

• 75 Ill. 400

Syllabus

<p>1. Specific perfobmauce—vendor cannot enforce unless Tie is able to make the title contracted for. Where a purchaser has contracted for a good title, of record, upon bill filed by the vendor, it appearing that the latter had not such a title as he covenanted to convey, the court will not compel the vendee to take a title depending upon adverse possession under the statute of limitations, although it may be a good title, as that would be to enforce a different contract from that of the parties, a good title of record and one depending upon parol evidence being substantially different.</p> <p>2. Same — whether taking possession is a waiver of objection to title. Where, by the terms of a contract for the sale or exchange of lands, the vendor was to give immediate possession upon the completion of certain improvements, and to furnish abstract of title, there being no time fixed for the last, this will have an important bearing upon the question of waiver of objections to the title by the vendee in taking possession, as possession in such case is consistent with the contract,</p> <p>8. The mere act of taking possession of real estate and exercising acts of ownership over it will not preclude the purchaser from his right to investigate the title, unless the court is satisfied that he intended to waive, and has actually waived, such right. The waiver is a question of intention, and one of fact from all the circumstances, and not an arbitrary presumption of law from the mere fact of taking possession.</p> <p>4. Evidence—in chancery must have its foundation in the pleadings. It '.s a well settled rule, that every material allegation must be put in issue by the pleadings, and no interrogatories can be filed which do not arise from, or relate to, some fact charged in the complainant’s bill.</p> <p>5. When a waiver of objection to the title is relied on as a ground for specific performance of the contract of sale, the vendor’s bill should be so framed as to put that question