MITTIE C. AMBLER, Appellee, vs. JACOB GLOS et al.— (AUGUST A. TIMKE, Appellant.)

Opinion filed October 28, 1910–Rehearing denied Dec. 9, 1910.

I. REGISTRATION OF TITLE-valid tender is necessary to charge the defendant with costs. An applicant in a proceeding to register title who desires to charge the holder of a tax title with the costs should make a tender of the taxes, costs and interest before filing his bill and keep such tender good by bringing the money into court, otherwise it is error to decree costs against the holder of the tax title.

2. APPEALS AND ERRORS-decree not erroneous if in accordance with mandate of Supreme Court. Where a decree in a proceeding to register title is reversed and the cause is remanded, with directions to enter a particular decree, the provisions of the new decree which are in accordance with the mandate of the Supreme Court cannot be held erroneous.

APPEAL from the Circuit Court of Cook county; the Hon. ADELOR J. PETIT, Judge, presiding.

JOHN R. O'CONNOR, for appellant.

BULKLEY, GRAY & MORE, for appellee.

Mr. JUSTICE COOKE delivered the opinion of the court:

This is the second time this cause has been before us. The opinion in the former appeal is found in Ambler v. Glos, 237 Ill. 637, where the matters in issue are fully set out and to which we refer. On that appeal the decree of the circuit court was reversed because of the erroneous finding that a tender had been made to August A. Timke, and the cause was remanded with directions to enter a decree in substance as that appealed from, except that it should provide for the cancellation of the certificate only upon Timke's reimbursement, precisely as though no tender or payment had been made to Glos. Upon the filing of the remanding order in the circuit court a decree was entered

in conformity with that order, with the exception that it adjudged the costs against the defendant August A. Timke. From this decree Timke has prayed an appeal, and numerous assignments of error have been made, only four of which are relied upon here. The assignments relied upon are: That it was error to adjudge costs in the court below against appellant; that the court failed to require appellee to reimburse appellant, as directed by the mandate; that appellant is required by the decree to produce the certificate of sale within ten days, for cancellation; and that appellant was not allowed to offer proof that a deed had been issued on said certificate of sale.

The decree was reversed on the first appeal for the reason that the court erroneously found that a proper tender had been made to the appellant, and when the cause was remanded with directions to enter a decree in substance the same as that appealed from, except that it should provide for the cancellation of the certificate only upon Timke's reimbursement, precisely as though no tender or payment had been made, it necessarily followed that the decree should have adjudged the costs against the applicant, who is the appellee here. The rule is, in cases of this character, that where the owner desires to place the holder of a tax title in the wrong, so as to relieve himself from the payment of costs, he should make a tender of the taxes, costs and interest before filing his bill and keep such tender good by bringing the money into court, and if he fails in that requirement it is error to decree costs against the defendant. (Kenealy v. Glos, 241 Ill. 15, and cases there cited.) No such tender had been made to Timke, and it was therefore error for the court to adjudge the costs against him.

In support of the second contention, appellant urges that reimbursement was not made as directed by the mandate, and that it was error for the court to decree the relief prayed until reimbursement was made. The decree of the court specifically finds that the sum of $61 was brought into court

and tendered to appellant in full payment of all moneys paid out by him on account of the certificate of sale and in full of all costs and expenses in and about said sale, and a subsequent order of the court recites that the deposit of $61 theretofore made under the decree be held by the clerk of the court. No question is made of the amount tendered, but appellant contends that this amount was not offered in legal tender but was offered in the form of a check, and to substantiate this claim relies upon a colloquy, which appears in the record, between his solicitor and the solicitor for the appellee, wherein his solicitor designated the offer as being in the form of a check. There is nothing in the record to show that this was not a legal tender, but, on the contrary, the decree of the court held it to have been such, and recites that the money, after having been offered appellant in open court, was paid to the clerk.

In support of his third contention, appellant asserts that it was error to require the surrender of the certificate in any event; and in support of the fourth assignment argued, relies upon a statement made by his solicitor in court, and which appears in the record, to the effect that since the entering of the first decree herein a deed had been issued on the certificate of sale, and an oral motion to file an amended answer instanter and for leave to offer proof of that fact. The court refused to allow the amended answer to be filed, but no exception was taken to this action of the court, which is assigned here as error. The decree in respect to the surrendering of the certificate for cancellation is in accordance with the judgment in the former appeal and the mandate issued thereon, and the court committed no error in so decreeing.

The decree of the circuit court will be modified by providing that appellee pay the costs in that court and that appellant have execution there for. In all other respects the decree is affirmed.

Decree modified and affirmed.

EVA GLADVILLE, Appellant, vs. JOHN MCDOLE et al. Appellees. JOHN MCDOLE, Appellee, vs. FLORA SMITH et al. Appellants.

Opinion filed October 28, 1910-Rehearing denied Dec. 8, 1910.

1. WITNESSES--parties not competent where other parties are suing and defending as heirs. Neither the complainant in a bill for specific performance nor her husband is a competent witness in her behalf where the defendants are defending as the heirs-atlaw of the persons alleged to have made the contract; nor are they competent to testify in a partition proceeding where the complainants claim the land by inheritance, and their testimony will not be considered by the Supreme Court even though the trial court made no ruling on the question.

2. SPECIFIC PERFORMANCE-verbal contract to convey land must be clearly proved. A verbal contract to convey land must be proved by competent evidence and be clear, definite and unequivocal in its terms.

3. SAME-Statute of Frauds cannot be interposed in equity to accomplish a fraud. A court of equity will not permit the Statute of Frauds, the only purpose of which is to prevent fraud, to be used where the effect will be to accomplish a fraud.

4. SAME when a court of equity will not listen to defense of Statute of Frauds. Where a verbal contract has been performed, either fully or in part, by the party seeking the remedy, and the facts are such that it would be a virtual fraud to permit the defendant to interpose the Statute of Frauds, a court of equity will not listen to such defense.

5. SAME-in equity the rights and duties of the parties are the same as though the contract were in writing. In equity the rights and duties of the parties to a verbal contract are the same as they would be were the contract in writing and signed, and unless the one who has performed the contract in good faith can be made whole in damages he is left without an adequate remedy at law, and equity will compel the other party to do the thing which was agreed to be done.

6. SAME-equity will grant relief to prevent fraud resulting from setting up defense of Statute of Frauds. A court of equity may grant relief by decreeing specific performance of a verbal. contract where the contract has been performed by one party in such a way that the parties cannot be placed in statu quo or damages awarded which would be full compensation.

7. SAME-possession of land in lifetime of other party is not indispensable. Where a verbal contract to convey land does not contemplate that the promisee shall have possession of the land before the death of the promisors, the fact that the promisee does not have exclusive possession of the land during the lifetime of the promisors is not, of itself, ground for allowing the defense of the Statute of Frauds to be interposed to defeat the promisee's right to specific performance.

8. SAME when party takes title subject to equities of promisee in verbal contract. Where a person receives the title to land without consideration and with knowledge of the existence of a verbal contract to convey the land and of its full performance on the part of the promisee, the title so received is, in her hands and in the hands of her heirs, subject to the equities of the promisee.

9. SAME when equity should enforce verbal contract. A verbal contract to convey land in consideration of the rendition of services by the promisee in remaining with and caring for the promisor should be specifically enforced in equity as against the heirs of the promisor's wife, who received the title without consideration and with full knowledge of the contract and its performance, where the services, sacrifices and deprivations of the promisee in carrying out her contract were such as could not be estimated in money damages and where it would be a fraud upon the promisee to sustain the defense of the Statute of Frauds.

FARMER and DUNN, JJ., dissenting.

APPEAL from the Circuit Court of Moultrie county; the Hon. W. G. COCHRAN, Judge, presiding.

E. J. MILLER, for appellant.

JOHN E. JENNINGS, and W. K. WHITFIELD, for appellees.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

John McDole, brother of Phebe Jester, deceased, and one of her heirs-at-law, filed his bill in the circuit court of Moultrie county against her nephews, nieces and grandchildren for the partition of a tract of land containing