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different from those stated in the brokerage contract. Such is the law applicable to cases where there is merely a departure from the terms of the contract, leaving the transaction substantially that provided for by the agreement, such as a reduction in the price asked or an extension of the time of payment of all or part of the consideration; but where the transaction is wholly different from the one contemplated by the parties when the contract was made there can be no recovery upon the contract. In this class of contracts it may be fairly presumed that the parties contemplate some slight modification in the terms of sale, provided the principal assent to such modification; but it cannot be presumed that the parties intend that the contract shall apply to a transaction wholly different from the one which they have in view when they enter into the contract. In the latter instance, however, the broker or agent is not without remedy. If the principal receives the benefit of the agent's services, rendered at the instance of the principal, he is liable upon a quantum meruit.
From what we have said it follows that the superior court erred in instructing the jury that the transaction evidenced by the contract of February 18, 1895, constituted a sale within the meaning of the contract of December 10, 1888, and in refusing instructions offered by the appellants which would have advised the jury that such transaction was not a sale within the meaning of the last mentioned contract. Inasmuch as there was no sale within the meaning of the contract between appellants and Hinsley, appellee was not entitled to recover under any of the clauses of that contract. The verdict, however, plainly shows, and appellee states, that the jury awarded commissions under the second clause of the contract at the rate of ten cents per acre on the land transferred to the Amity Land Company, together with interest thereon at the rate of five percentum per annum from February 18, 1895, to the date of the verdict, the court having instructed the jury that they might allow such interest in case they found that appellee was entitled to recover under the contract of December 10, 1888. It is therefore apparent that the error committed by the court in advising the jury that the transaction set forth in the contract of February 18, 1895, was a sale, affected the verdict in the case and was prejudicial to appellants. The motion for a peremptory instruction at the close of all the evidence was, however, properly denied. The undisputed evidence shows that Hinsley rendered valuable services at appellants' request which led to the consolidation, and that appellants received the benefit of those services. The services so rendered by Hinsley which led to the consolidation are not covered by the contract of December 10, 1888, and were not performed under any express contract. Appellee is entitled to recover the reasonable value of those services. The declaration contained a quantum meruit count, and the evidence would have supported a verdict under that count. Under such circumstances it would have been error for the court to have directed a verdict for appellants.
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It is unnecessary to consider any of the other alleged errors discussed by appellants in their brief. They are such as will not probably arise upon another trial of this case.
Because of the error of the court in instructing the jury that the transaction set forth by the contract of February 18, 1895, constituted a sale, and in refusing the instructions offered by appellants which would have advised the jury that such transaction was not a sale, the judgment of the superior court and the judgment of the Appellate Court will be reversed and the cause remanded to the superior court for further proceedings consistent with the views expressed in this opinion.
Reversed and remanded.
ELZINA DEADMAN et al.
CORDELIA A. YANTIS et al.
Opinion filed October 23, 1907—Rehearing denied Dec. 5, 1907.
1. W11Ls—when devise creates a life estate with vested remainder. A devise of certain land to the testator's wife "for and during her natural life" and at her death to the testator's daughter and her two children, (naming them,) creates a life estate in the testator's wife with a remainder which vests at the testator's death in his daughter and her two named children.
2. Same—a vested remainder may be partitioned or sold on execution. Subject to the life estate a vested remainder may be partitioned among the remainder-men, and their undivided interests are subject to levy and sale on execution for their respective debts.
3. Laches—when party is estopped to dispute title. A tenant in common who is duly made a party and served with process in a partition suit by the grantee of the other tenants in common, and who makes no defense to the suit but accepts and receipts for her share of the proceeds of the partition sale and makes no objection for a period of ten years, during which the purchaser has made lasting improvements on the land, is estopped to question the title of the complainant as acquired by her from the other tenants in common, even though the partition proceeding is improper.
4. SAME-equity applies doctrine of laches according to the particular circumstances. In applying the doctrine of laches a court of equity will look to the particular circumstances of each case and is bound by no inflexible rule, although it may, by analogy, adopt the statutory period of limitations as applied in actions at law.
5. JUDICIAL SALES—effect where the judgment is not founded on bona fide debt. The purchaser at an execution sale is not required to look beyond the record to ascertain whether the judgment is founded upon a bona fide debt, since if it is not so founded it is not void but only voidable at the instance of the party aggrieved, who must act promptly in seeking relief.
6. SAME--when judgment debtor is estopped to question judgment. One who permits a judgment to be recovered against her and her interest in land to be sold on execution without making any defense or any attempt to redeem or raising any objection for over ten years, is estopped to subsequently attack the title of the
purchaser at the sale upon the ground that the debt upon which the judgment was recovered had been satisfied before suit was brought.
7. MORTGAGES—party claiming deed to be mortgage must prove his claim. One who claims that a deed absolute on its face was intended as a mortgage has the burden of establishing such fact by clear and convincing evidence.
8. SAME--when no action is necessary to divest right to redeem. Where the legal title is conveyed by a deed, absolute in form, to secure a loan, no action is necessary to divest the right to redeem, and the same may be lost by limitation or laches.
9. Same--when the purchaser takes title freed from condition of defeasance. Where one who has the right to redeem under a deed intended as a mortgage decides to sell his interest and directs the holder of the legal title to convey the same to the purchaser, the latter takes the title divested of the condition of defeasance.
APPEAL from the Circuit Court of Shelby county; the Hon. TRUMAN E. Ames, Judge, presiding.
This is an appeal from a decree of the Shelby county circuit court dismissing, for want of equity, a bill for partition filed by Elzina Deadman against Cordelia Yantis and others. Mary J. Dixon, who was a defendant in the original bill, was by amendment made complainant. John W. Dixon, another defendant, filed an answer confessing the material allegations in the bill, and subsequently filed a cross-bill setting up certain facts and praying relief, which will be more fully stated hereinafter.
The original bill alleged that William Claridge was the owner of the north half of the south-east quarter of section 15, the north half of the south-west quarter of section 14 and the south-east quarter of the south-west quarter of section 14, township 12, north, range 4, east, in Shelby county, at the time of his death, which occurred May 29, 1880; that said Claridge died testate and that his will was duly probated in Shelby county; that by his last will William Claridge devised the two hundred acres of land above described to his widow, Elizabeth M. Claridge, during her lifetime, with remainder in fee to his daughter, Mary Jerusha Dixon, and her two children, John William Dixon and Elzina Dixon, (now Elzina Deadman,) in equal parts, as tenants in common. The clause of the will which is supposed to vest the above interests in the parties is the third, and is as follows:
“Third—I do give, devise and bequeath unto my wife, Elizabeth M. Claridge, for and during her natural life, my home farm on which I now live, consisting of two hundred acres, described as follows, to-wit: The north half of the south-east quarter of section 15, and the north half of the south-west quarter of section 14, and the south-east quarter of the south-west quarter of section 14, all in township 12, north, range 4, east, in Shelby county, in the State of Illinois; and it is my will and desire, and I do direct, that during the life of my said wife my said daughter, Mary Jerusha Dixon, and her children, William Dixon and Elzina Dixon, shall live upon said home place and enjoy the use and rents and profits thereof, and at the death of said wife I will and devise said home place to my daughter, Mary Jerusha Dixon, and her said children, William Dixon and Elzina Dixon, and the survivors of them, and to their heirs and assigns forever.”
The bill alleges that on the gth of January, 1905, the widow, Elizabeth M. Claridge, died, and that by virtue of said will the title to the real estate thereupon became vested in Mary Jerusha Dixon and her two children, John W. Dixon and Elzina Deadman, as tenants in common, each owning one-third undivided interest, and it is averred that the title in fee did not vest in Mary J. Dixon and her two children prior to the death of the life tenant. Cordelia Yantis, John W. Yantis, E. A. Richardson, George D. Chafee, and others, were made defendants, and as to the interest or claim of defendants above named it is charged that “they claim some interest in or to said premises, or a part thereof, as grantees, mortgagees, judgment creditors