Cass County IL Archives Court.....Davis, V M'Vickers 1849
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 21, 2008, 11:46 pm

Source: Reports Of Cases Illinois
Written: 1849

John Davis v. Elijah M'Vickers.

Appeal from Cass.

1. Agreement and notes—construed one contract. Where the promissory notes sued 
on, and an agreement respecting them, were executed at the same time, between 
the same parties, about the same subject matter, they must be construed 
together, and considered as forming but one contract.

2. Promissory note—no title to land — consideration failed. If a party gives 
promissory notes as the consideration for land, and he can not acquire the 
title to the estate purchased, there is a failure of consideration, which may 
be set up to defeat a recovery on the notes.(l)

3. Execution sale—deed to whom. In conveying lands sold on execution, a 
sheriff can only make the deed to the purchaser, his assignee or legal 
representative. A deed to a stranger would be a nullity. (2)

Elijah M'Vickers brought his action in the Cass circuit court, by petition and 
summons, upon two promissory notes, for $300, given by Davis, the appellant, 
to him.

Upon the return of the process, Davis pleaded failure of consideration, 
setting forth that the notes were given upon an article of agreement, executed 
between the parties, by which M'Vickers bound himself to convey to Davis, when 
the payments specified in said articles should be complied with, certain land 
therein described, referring in said articles to the notes sued on, and 
averring that the said M'Vickers had not conveyed, and had not, at the time of 
the giving of the notes, nor at the commencement of the suit, power to convey 
said land; because the said land had been sold by the sheriff of Cass county, 
upon a judgment and execution in the case of James M'Vickers v. John Morris, 
and a certificate of purchase executed therefor to said James M'Vickers; and 
that afterwards, said sheriff executed a deed for the said land to the said 
Elijah M'Vickers, who represented himself to be the sole heir of said James 
M'Vickers; whereas, in truth, James M'Vickers was living at the time of the 
execution of the sheriff's deed, and entitled thereto. To this plea plaintiff 
demurred; there was joinder in demurrer, which was sustained by the court. 
Woodson, judge, presiding.

The defendant below prayed this appeal, and assigned for error, the sustaining 
the demurrer to the plea.

Stuart & Edwards, for appellant. S. W. Robbins, for appellee.

Treat, C. J. The notes sued on and the agreement set forth in the plea, having 
been executed at the same time, between the same parties, and respecting the 
same subject matter, must be construed together and considered as forming but 
one contract. Bailey v. Cromwell, 3 Scammon, 71; Duncan v. Charles, 4 ib., 
561. The agreement to execute a deed was not the real consideration of the 
notes; the true consideration was the estate agreed to be conveyed. Tyler v. 
Young, 2 Scammon, 444; Mason v. Wait, 4 ib., 127. If it is not in the power of 
the plaintiff to make a good title to the estate, the defendant is not bound 
to pay the purchase money. He can not be compelled to pay the notes, unless he 
can obtain that for which they were given. If he can not acquire the title to 
the estate purchased, there is a failure of the consideration, which may be 
set up to defeat a recovery on the notes. Gregory v. Scott, 4 Scammon, 392; 
Duncan v. Charles, ibid, 561.

Does the plea show that the plaintiff is not in a condition to make a good 
title to the land? It alleges that James M'Vickers purchased the land at a 
sheriff's sale, and received a certificate of purchase; and that, 
subsequently, and while the purchaser was alive and entitled to a deed, the 
sheriff conveyed the land to the plaintiff, as the sole heir of such 
purchaser. If these allegations are true, it is clear that no title passed by 
the conveyance. James M'Vickers was not bound by this act of the sheriff; and 
he may compel the sheriff to execute a deed to him as the purchaser, which 
will vest in him the legal estate. In conveying land sold on execution, a 
sheriff can legally only make the deed to the purchaser, or the assignee of 
the certificate of purchase; or, in case of the death of the party entitled to 
the deed, to his legal representatives. His deed to a stranger would be a 
nullity. The grantee of a sheriff does not make out title by the mere 
production of the sheriff's deed. He must in addition, show a judgment and 
execution, that authorized the sheriff to make the sale and conveyance. The 
deed passes no title unless it is based on a judgment and execution. The 
judgment is the foundation of the proceedings, and the grantee of the sheriff 
must connect himself with it, as the purchaser at the sale, or the assignee or 
legal representative of the purchaser. This, if the plea is true, the 
plaintiff can not do. The attempt to do it, instead of showing title in the 
plaintiff, would prove that another person was entitled to a deed, who could 
compel the sheriff to execute it. The plea shows that the plaintiff is a mere 
stranger to the judgment and the proceedings under it, and has no interest in 
the title to be deduced therefrom.

The judgment of the circuit court will be reversed with costs, and the cause 
remanded for further proceedings.

Judgment reversed.

----------------
Cited — Foster v. Jared, 12 Ill., 451; Dickerman v. Burgess, 20 Ill., 266; 
Edwards v. Pyle, 23 Ill., 354; Hobson v. Ewan, 62 Ill., 146; Fischer v. 
Eslaman, 68 Ill., 78; Denby v. Graff, 10 Bradw., 195.

(1) In a bond for a deed the consideration for the purchase money of land is 
the title, not the covenants to convey, Gregory v. Scott, 4 Scam., 392; so, 
under a contract to convey, if vendor be unable to perform when vendee is 
entitled to a deed, the consideration has failed and vendor's inability will 
excuse vendee's non tender of the last payment, Denby v. Graff, 10 Bradw., 
195. To a note it was set up as a defense the plaintiff was to plant a hedge 
to become a sufficient protection within a stated time; plaintiff being 
powerless to perform, the plea was held good as for failure of consideration, 
Edwards v. Pyle, 23 Ill., 354; see, further, Vincent v. Morrison, Breese (ed., 
1885), 175, note 1.

(2) Title under sheriff's certificate of sale may pass by assignment although 
the assignment be defectively executed and not enable the holder to compel the 
officer to execute a deed to him, M'Clure v. Engelhardt, 17 Ill., 47.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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