Scott County IL Archives Court.....Morgan, V Smith 1849
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Source: Reports Of Cases Illinois
Written: 1849

Thomas Morgan v. William Smith, Samuel Montgomery, and Henry R. Hollister.

Appeal from Scott.

1. Bond for title—covenant for deed. A covenant by the obligor, in a bond to 
convey land, by executing and delivering to the obligee "a good and sufficient 
general warranty deed," is not satisfied, without the conveyance of a perfect 
title, free of all incumbrances. (1)

2. Incumbrance — existing easement. The grant of an easement authorizing the 
grantee to dam up, and use the water of a branch running over the land of the 
grantor; and, also, to use the water of a spring upon it, is an incumbrance. 
(2)

3. Covenant to convey land — incumbrance. A covenant to convey land, free of 
all incumbrance, is not complied with by the tender of a deed to the 
covenantee, with the reservation of an easement previously granted, by the 
covenanter to a stranger.

4. Same — incumbrance as failure of consideration. The existence of such an 
easement being a breach of the covenant against incumbrances, may, in an 
action by the covenanter against the covenantee, upon a note given for a part 
of the purchase money, be set up by way of defence, as a failure of 
consideration, to the extent of the injury occasioned by the incumbrance; or 
the covenantee, in order to have the rights of all the parties fully and 
finally settled, may resort to a court of equity, for the purpose of 
compelling the covenanter to surrender up the note, and execute a deed upon 
such terms as should be found to be just and equitable.(3)

5. Practice — allegata et probata. It is a well settled principle, that the 
allegations and proofs must correspond, and that a party will not be entitled 
to relief, although the evidence may establish a clear case in his favor, 
unless there are averments in the bill to support the case made by the bill. 
(4)

6. Pleading — allegation of adverse rights. A complainant is not bound to set 
forth his adversary's rights, with the same particularity as his own. Where 
the extent and character of those rights is more peculiarly within the 
knowledge of the adverse party, it is sufficient for the complainant to allege 
generally that the adverse party has, or claims to have, some rights relative 
to the subject matter of the controversy, leaving the opposite party to 
disclose in his answer the nature and extent of them. (5)

7. Covenant to convey — purchaser's knowledge. It is no defence to a bill 
alleging a breach of a covenant against incumbrances, that the covenantee knew 
of the existence of the incumbrance, at the time of the making of the covenant.
(6)
   
8. Practice — cross bill when not to be filed. A defendant is not permitted to 
file a cross bill, where his rights are fully disclosed in his answer, in 
response to the allegations of the bill, and may be fully protected by the 
court, upon the hearing of the original bill.

9. Same — dismissal of bill. Where one of several parties, defendant to a bill 
in chancery, has no interest in the subject matter in litigation, it is not 
error in the circuit court to dismiss the bill as to him.

Bill in chancery, to enjoin a suit at law, to compel a specific performance, 
etc., filed in the Scott county circuit court, by the appellant against the 
appellees, and heard before Woodson, judge. The bill stated, in substance, 
that complainant, about the 6th of November, 1845, purchased of William Smith 
the following lands, to wit: the north-east quarter of the north-east quarter 
of section number twenty-nine, township fourteen north, range twelve west, 
containing thirty-nine acres; and, also, a part of the north-west quarter of 
the northeast quarter of the same section, containing thirty-one acres — there 
being in both parcels seventy acres of land; upon which were a frame dwelling 
house, and other valuable improvements; the two tracts of land making one 
entire farm and piece of property. That Morgan paid and agreed to pay Smith 
for this property, the sum of one thousand dollars: five hundred dollars were 
paid in hand, at the time of purchase, and Morgan gave his note for the 
balance, payable on the first day of March following; upon which Smith 
executed to Morgan a bond or contract, under seal, by which he bound himself 
to make and deliver to Morgan, or his assigns, a good general warranty deed 
for said land, and to deliver possession of the land on the 1st of March, 
1846, upon payment of the note for five hundred dollars. These were to be done 
simultaneously. That long before this note became due, Morgan paid Smith three 
hundred dollars on account of it, and offered in due time to pay the remaining 
two hundred dollars, and demanded of Smith a conveyance of the land, pursuant 
to the contract; which Smith refused to make, but offered a deed, with various 
reservations and conditions, not authorized by the contract of sale. Morgan 
avers that since he made the purchase from Smith, he has learned that Samuel 
Montgomery and Henry E. Hollister, the other respondents, have set up some 
claim to a portion of or to some right upon said land. Admits that Morgan 
knew, when he purchased the land, that Montgomery and Hollister, or some other 
person, had upon one corner of one of said tracts of land, a tan yard, etc.; 
but who were then or are now the owners of the same, he does not know. Admits 
that, about or after the time of sale from Smith to Morgan, Smith told Morgan, 
that he, Smith, had conveyed away three quarters of an acre of land, off one 
corner of said tract, to include said tan yard; but that, without these three-
quarters of an acre, Smith averred there were more than seventy acres of land 
in the two tracts. That Morgan purchased the land without notice that there 
were any other rights conveyed or sold to attach to said tan yard; and that 
Morgan offered to take a deed from Smith, and leave out the three quarters of 
an acre, and if the two tracts fell short of seventy acres, that Morgan should 
be allowed an equivalent of fourteen dollars and twenty-three cents per acre, 
for the diminution in quantity. That before the said first of March, Smith was 
to have the land surveyed by the county surveyor, to ascertain the exact 
quantity of land; which had not been done. The bill charges that Smith has 
wholly failed to comply on his part, and has sued Morgan for the full amount 
of the five hundred dollar note, without crediting him with the three hundred 
dollars already paid. That Smith is insolvent, and fraudulently designs to 
enforce the payment for the land, without complying with his contract on his 
part. That all the respondents are combining to procure and retain out of said 
land, rights and privileges that do not belong to them. The bill prayed that 
the suit at law be enjoined, and that Montgomery and Hollister be compelled to 
exhibit and show what right they have to said land, or to any part of it, and 
all privileges connected, therewith. That the rights of all the parties in the 
land be ascertained and quieted. That a survey of the land be ordered, and if 
Montgomery and Hollister are entitled, to any part of said tracts of land, or 
to any rights and privileges out of or upon the same, that the court will 
determine the value of the land, and the rights and privileges of Montgomery 
and Hollister; and that an abatement in price be made, in proportion to the 
ascertained value of the injury sustained by the tracts of land in consequence 
thereof. That Montgomery and Hollister be perpetually enjoined from 
interfering with or entering upon or exercising any privileges upon said land, 
except the said three quarters of an acre; and that Smith bo compelled to 
convey the land, etc.

Smith answered, admitting the truth of the bond, etc.; that he sold the farm 
in block, for one thousand dollars, described in the bond as 
containing "seventy acres, more or less" and that the land has been surveyed, 
and contains a fraction more than sixty-nine acres, and that he has received 
eight hundred dollars from Morgan on account of the land. Avers a tender of a 
deed as required by the bond, which Morgan refused to receive, "on the evasive 
pretext of the reservation in the same of a certain privilege to the said 
Henry E. Hollister, Samuel Montgomery, and one Jesse Eustis;" and he insists 
that Morgan had both actual and constructive notice of the sale of this 
privilege to Hollister and Montgomery, prior to the purchase of the land from 
Smith. The deed tendered by Smith to Morgan contains this 
reservation: "excepting, nevertheless, a certain privilege of damming up and 
raising the water in a certain branch running across a tract of land conveyed 
by the grantor to Henry E. Hollister, Samuel Montgomery and Jesse Eustis, by 
their deed executed December 31st, A. D. 1844, and recorded in the recorder's 
office of Scott county, Illinois; which privilege consists in the right on the 
part of the last above named grantees, to dam up the waters of said branch, on 
the lands of said grantors, above said land so conveyed to the last named 
grantees, and to convey and use all the water in the main spring on the land 
of the said grantors, up said branch, across their land, to the premises by 
them in said deed conveyed, either by an aqueduct or a ditch, for the use of 
said grantees, their heirs and assigns, over the premises to them conveyed, 
for ever."

Hollister and Montgomery filed an answer to the bill of Morgan, and a cross 
bill, setting up their rights, and praying the court to define those rights, 
and to protect them against the acts of Morgan, as the subsequent purchaser 
from Smith. Morgan excepted to the answer of Smith, for insufficiency, and 
replied to Hollister's answer, and moved to strike his cross bill from the 
record.

The court dismissed Morgan's bill and Hollister's cross bill, and decreed that 
Morgan should pay Smith two hundred and thirty-nine dollars and twenty-five 
cents, as the balance of consideration due for the land.

The proofs in the case not being necessary to the understanding of the opinion 
of the court, are omitted. Morgan instituted this appeal.

M. M'Connell, for appellant: Does the grant or clause in the deed to Hollister 
pass an interest in the land, or is it but a personal covenant, by which 
subsequent purchasers from Smith are not bound? 4 Mass. E., 629, 630, Prescott 
v. Freeman, determines what is an incumbrance. Morse v. Aldrich, 10 Pickering, 
449, 452-3 and 4; Gale's Law of Easements, pp. 1, 2, 6, 10, 12, 31, 32. Morgan 
insists, that if Hollister has the right he claims, then Smith is bound to 
refund to him the value of the said right, out of the sum agreed to be paid 
for said farm. Sumpter v. Welch, 2 Bay's Rep., 558; Adams v. Wylie, 1 Nott & 
M'Cord's Rep., 78; Penn v. Preston, 2 Rawle Rep., 14; Tuno v. Flood, 1 
M'Cord's Rep., 121; Prescott v. Freeman, 4 Mass. Rep., 628, 629, 630. Smith 
cannot protect himself against a compliance with his bond, because Morgan had 
either constructive or actual notice of the previous conveyances to Hollister 
and company. Townsend v. Weld, 8 Mass. Rep., 146; Warren v. Powers, 5 Conn. 
Rep., 381. This authority is clear, that the bond must be complied with. 
Suydam v. Jones, 10 Wendell's Rep., 180; 1 American Chancery Digest, 677, sec. 
84; ibid, 682, sec. 183. Smith can not compel Morgan to accept a warranty deed 
for this land, until he shows that he has a good right thereto. Evans v. 
Kirtland, 4 Paige's Ch. Rep., 637-8; 1 American Ch. Dig., p. 148, sec. 1; 2 
Johnson's Rep., 591; 10 Johnson's Rep., 266, 297; 11 Johnson's Rep., 525; 
Brown v. Cannon, 5 Gilman R., 174. The court erred in rendering a decree 
against Morgan, in favor of Smith, upon the answer of Smith alone. McConnel v. 
Hodson, 2 Gilman, 649; Tarlton v. Vietes, 1 Gilman, 472; Ballance v. 
Underhill, 3 Scammon, 460, 461.

D. A. Smith, for appellee: 1. A complainant must recover, if at all, on the 
case made by his bill. He can not state one case in his bill, and make out a 
different one in proof. The allegations and proofs must correspond; the latter 
must support, and not be inconsistent with the former. Although a good case 
may appear in the evidence, yet if it be variant from that stated in the bill, 
the bill will be dismissed. The defendant has the right to answer and contest 
the case on which the complainant claims relief, and he is not required to 
explain or controvert what is not there stated, as the foundation of the 
claim. M'Kay v. Bissett et al., 5 Gilm., 499. 2. Morgan has not, with legal 
sufficiency, described the easement in the land conveyed by Smith to 
Montgomery and others, in his, Morgan's bill, admitting, for the sake of 
argument, that the easement is an incumbrance on the land covenanted to be 
conveyed by Smith to Morgan. 16 Johns., 122, 256. If the incumbrance were 
fully and sufficiently described, and Morgan could claim a deduction from the 
purchase money, on account of the existence of the incumbrance, he has not so 
alleged damages in his bill, as that he is entitled to more than mere nominal 
damages. Sedgwick on the Measure of Damages, 185, 186. 3. The existence of the 
incumbrance of the easement, is not a breach of the covenants of the deed, 
contracted to be made by Smith to Morgan, assuring title to the land, by 
general warranty. The existence of the easement of a public highway, the 
supreme court of New York, in the case 15 Johns., 483, has decided to be no 
breach of the covenants in a deed, more comprehensive than the covenants of 
the deed that Smith agreed to make to Morgan.

Trumbull, J. That the deed from Smith to Montgomery and others, created an 
incumbrance upon the land which he had contracted to convey to the 
complainant, and put it out of his power to comply with his obligation, there 
can be no question. By his bond, Smith had obligated himself to execute and 
deliver to the complainant, "a good and sufficient general warranty deed," for 
the premises in question; that is, he covenanted to convey a perfect title, 
free of all incumbrances, (Brown v. Cannon, 5 Gil., 174,) and yet previous to 
the execution of the bond to complainant, he had conveyed away to Montgomery 
and others, their heirs and assigns, the right to dam up and use the water of 
a branch running through the land; and, also, to use the water of a spring 
situated upon it. This easement, originally granted to Montgomery and others, 
and which, by subsequent conveyances, as the record shows, became wholly 
vested in Hollister, created a perpetual incumbrance upon the land, and Morgan 
had a right to insist, when called upon to pay the purchase money, upon a 
deduction from the contract price, of a sum equal in amount to the 
deterioration of the property, occasioned by the *easement existing [*200] 
upon it; and ho was not bound to accept a deed, reserving the privileges which 
had become vested in Hollister, nor any other than such a deed as would convey 
to him a complete title to the premises he had contracted for, free of all 
incumbrance. Morgan might, no doubt, have set up the existence of the 
easement, as a defence to the suit upon the note, and would have been entitled 
to a credit, equal in amount to the injury occasioned by the incumbrance; but 
we think, in order to have the rights of the parties fully and finally 
settled, he might also come into a court of equity, where the obligor might be 
compelled to surrender up the note, and execute a deed upon such terms as 
should be found to be just and equitable. The whole record shows such a case 
as to entitle the complainant to relief; but then it is insisted, that the 
allegations of his bill are not such as to warrant its being granted in this 
suit. It is a well settled principle, that the allegations and proofs must 
correspond, and that a party will not be entitled to relief, although the 
evidence may establish a clear case in his favor, unless there are averments 
in the bill to support the case made by the evidence. That the character of 
the incumbrance is not as distinctly charged as it might have been, is 
apparent, but a party is not bound, to set forth his adversary's title or 
rights, with the same particularity as his own. The extent and character of 
the privileges of the defendants, Montgomery and Hollister, being more 
peculiarly within their own knowledge, it was sufficient for the complainant 
to allege generally, that they had, or claimed to have, some claim or 
privilege upon the land, leaving them to disclose in their answers its nature 
and extent; which they have done. Cooper Eq. Pl., 6; Story's Eq. Pl., sec. 255.

The bill alleges, that the complainant "has learned that Samuel Montgomery and 
Henry E. Hollister have set up some claim to a portion of, or to some right 
upon said land," and charges, that the defendants have combined to "reserve 
rights and privileges that were never originally reserved in said purchase," 
and prays that Montgomery and Hollister be compelled to exhibit and show "what 
right they have to said land, or to any part of it, and all privileges 
connected therewith;" that the court determine the rights and privileges that 
said Montgomery and Hollister are entitled to, out of said land, and that an 
abatement out of the consideration paid and agreed to be paid for the same be 
made, equal to the value of the rights reserved.

The foregoing allegations and prayer, we think sufficient to entitle the 
complainant to have his rights and liabilities determined in this suit, 
notwithstanding both parties seem to have lost sight, in a great measure, of 
the real points in the case, and to have directed their attention, chiefly, to 
the question whether the complainant, at the time of his purchase from Smith, 
had notice of the rights claimed by Montgomery and Hollister—a question, as we 
conceive, wholly immaterial in this case, as Smith was equally bound by the 
covenants in his bond, whether the complainant knew of the easement or not. 
The cross bill filed by Hollister, was wholly unnecessary, and was, therefore, 
properly dismissed. He had fully set forth and shown his rights in the 
premises, as a defendant to the original bill, and this was all that he was 
required to do for the protection of his rights. The original bill was also 
properly dismissed, as to both Montgomery and Hollister, as no decree could be 
entered against them, but the circuit court erred in dismissing it as to 
Smith; and as the evidence in reference to the deduction that should be made, 
in consequence of the easement upon the land, is somewhat uncertain and 
unsatisfactory, the cause will be remanded, with directions to the circuit 
court, to ascertain how much less the premises contracted for by the 
complainant are worth, in consequence of the privilege or easement which 
Hollister has in them and if the amount is less than what remains due for the 
land, to deduct it therefrom, and render a decree for the balance in Smith's 
favor; and upon the payment of such balance by the complainant, that the note 
for the balance of the purchase money be cancelled, and Smith decreed to 
execute and deliver to the complainant a general warranty deed, conveying to 
him a complete title to the premises described in the bond; excepting 
therefrom the one and thirty-four hundredth acres occupied as a tan yard, and 
the easement originally granted to Montgomery and others, and now belonging to 
Hollister; or, if the deterioration in value of the premises, in consequence 
of the easement or privilege of Hollister in them, shall be found to exceed 
the balance due Smith for the land, that said note be cancelled, and Smith 
decreed forthwith to execute and deliver to the complainant a deed of the 
character aforesaid, and to pay him such excess. The complainant is not 
entitled to any deduction from the price he agreed to pay, on account of the 
quantity of the land, as shown by actual survey, being some one or two acres 
less than what it was estimated to be at the time of the sale. The condition 
of the bond shows that he did not purchase by the acre, but gave so much for 
the particular lands, describing them, and being the same then occupied and 
contracted by said Smith as a farm, containing "seventy acres, more or less." 
The mention of the quantity of acres was, in this instance, but matter of 
description, and did not amount to any covenant which would be violated, if 
the quantity of acres should fall short of the given amount. 4 Kent's Com., 
466. Nor can the complainant claim any deduction on account of the tan yard 
contract having been conveyed to Montgomery and others, as he proffers in his 
bill to accept a deed excluding it, and it constituted no part of the farm 
occupied by Smith, at the time of the purchase, but was then, as the bill 
admits, in the possession of Montgomery and Hollister.

So much of the decree of the circuit court as dismisses the cross bill filed 
by Hollister, and the original bill as to Montgomery and Hollister, is 
affirmed; and the balance of said decree is reversed, and the cause remanded, 
at the costs of said Smith.

Decree modified.

---------------
Cited—Boot v. Renwick, 31 Ill., 17; Rowan v. Bowles, 21 Ill., 17; Swift v. 
Castle, 23 Ill., 209; Schuchman v. Knoebel, 27 Ill., 175; Ohling v. Luitjens, 
32 Ill., 23; Fergus v. Tinkham, 38 Ill., 207; Randolph v. Onstott, 58 Ill., 
52; Heath v. Hall, 60 Ill., 344; Munn v. Burges, 70 Ill., 604; Patterson v. 
Sweet, 3 Bradw. 550.

(1) And vendee is not under obligation to pay his money and receive deed while 
incumbrances are outstanding, Bishop v. Newton, 20 Ill., 175.

(2) So, of a precedent right of flowage over land, Patterson v. Sweet, 3 
Bradw., 550, and, the subsequent recovery against
frantee of a dower right, M'Henry v. Yokum, 27 Ill., 160.

(3) In an action on a note given for land, defendant can not interpose a plea 
that the quantity of land has been diminished by platting for streets etc. In 
such case the purchaser will be driven to the covenants in his deed for 
redress, unless he may recoup in the action on the note by showing covenants 
broken. A parol contract can not be set up as a defense to the note, Stookey 
v. Hughes, 18 Ill., 55. He may recoup in such action for such sums as he has 
been compelled to pay to remove incumbrances, his grantor having covenanted 
the land free from all incumbrances, Schuchman v. Knoebel, 27 Ill., 175; as 
where a right of dower is recovered, his title being by warrantee. In such 
case he may set off the value of the dower as a partial failure of 
consideration, M'Henry v. Yokum, 27 Ill., 160, as, also, any or all 
incumbrances may be set off to the extent of such incumbrances, Schuchman v. 
Knoebel, 27 Ill., 175. So, also, where the vendor agrees to remove all 
incumbrances, his failure to disburden the land is a good defense, in equity, 
to the purchase notes, to the extent of the incumbrances, even against an 
assignee of the notes with knowledge, Tenney v. Hemenway, 53 Ill., 97. In 
Patterson v. Sweet, 3 Bradw., 550, where the owner of land had granted the 
right to flow it and afterward conveyed the land in fee, receiving back a 
mortgage, to secure the deferred payments, on foreclosure, for the non payment 
of a certain note, the grantee, defendant in foreclosure, was held to have the 
damages sustained by reason of the flowage applied in reduction of the notes 
due and not yet matured. The easement, in breach of the covenant against 
incumbrances, being a proper defense to the notes.

(4) Allegata must exist before probata is considered, Fish v. Clelland, 33 
Ill., 239; Bush v. Connelly, 33 Ill., 448; Lloyd v. Karnes, 45 Ill., 62; 
Carmichael v. Reed, 45 Ill., 108; Dodge v. Wright, 48 Ill., 382. Existing the 
rule in chancery is the allegations and the proofs must agree, and that the 
decree must agree with both. Complainant may not allege one case in his bill 
and make proof of a different one; White v. Morrison, post, 361; Rowan v. 
Bowles, 21 Ill., 17; Chaffin v. Kimball's heirs, 23 Ill., 36; Burger v. 
Potter, 32 Ill., 66; Moore v. Titman, 35 Ill., 310; Wise v. Twiss, 54 Ill., 
301. The evidence making a case variant from that made in the bill, no decree 
should pass, save for dismissal or at least one for no more than is prayed 
for, Ohling v. Luitjen, 32 Ill., 23; the rule being to deny relief, although 
the evidence shall establish a clear case made, on its theory and basis, in 
favor of complainant, Randolph v. Onstott, 58 Ill., 52; Heath v. Hall, 60 
Ill., 344; House v. Davis, 60 Ill., 367; Vennum v. Vennum, 61 Ill., 331; Cronk 
v. Trumble, 66 Ill., 428; as if a money decree should be granted for an amount 
shown by the proof, but larger than claimed in the bill, there would be error 
to reverse, Ohling v. Luitjens, 32 Ill., 23; Fergus v. Tinkham, 38 Ill., 407; 
see Rowan v. Bowles, 21 Ill., 17. As to dismissal without prejudice, see 
Edwards v. Beaird, Breese, 41, note 1. The same rule prevails at law, Root v. 
Renwick, 15 Ill., 461; Moss v. Johnson, 22 Ill., 633; Sherman v. Blackman, 24 
Ill., 350; Cast v. Roff, 26 Ill., 452; for the authorities collated, on which 
matter, see Taylor v. Kennedy, Breese, 58, note 1.

(5) Nevertheless a party may, in his original bill, anticipate a defense and 
allege any matter necessary to explain or avoid it; or, not so doing, on the 
coming in of the answer, he may introduce the new matter into the case by 
amendment of the bill. White v. Morrison, 11 Ill. (post), 361.

(6) See Kruse v. Scripps, ante, p. 98, note 2.

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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