Stevenson v. Loehr

Citations

• 57 Ill. 509

Syllabus

<p>1. Vendor and Purchaser—incumbrance—condemnation for right of way. If the owner of a tract of land sells it, giving a contract for a deed of general warranty to be made on final payment, and between the sale and the making of the deed a portion of the premises is condemned under the right of eminent domain-for a railway track, the incumbrance thus created is not one for which damages can be recovered in an action on the covenants in the deed.</p> <p>2. Though in case the damages to the land by reason of such condemnation are paid by the railway company to the vendor, and he fails or refuses to account therefor to the vendee, the latter would probably have his option between an action for the damages as money had and received to his use, or an action on the covenants in his deed. The vendor in such case holds the damages in trust for the vendee, to be accounted for when the purchase money is paid.</p> <p>3. If the damages are paid in special benefits to the land, the vendee is regarded as having received, in that manner, the consideration for the condemned portion.</p> <p>4. While the damages to the land belong, in equity, to the purchaser/ yet, when paid in money, if the security of the vendor would be impaired by the receipt of the same by the purchaser, he might ifisist they should not be paid uutil his security be increased to that extent, and the purchaser would have a corresponding right to security if about to be placed in jeopardy by the payment of the damages to the vendor.</p> <p>5. Set oit—as between vendor and purchaser. In an action on a promissory note by the payee against the maker, it appeared the note was given for the unpaid purchase rnoliey of a tract of land which the vendor had contracted, upon the payment of the note, to convey to the vendee, by deed of general warranty, but the deed was in fact executed before final payment was made, and in the mean time a portion of the laud had been condemned, under the right of eminent domain, for a railw