Mr. Justice Scholfield
delivered the opinion of the Court:
James Boggs claimed to have no substantial interest in the subject matter of the contract, and he was joined therein only for the purpose of releasing any possible equity he might have. The real contracting parties were Willard upon the one side, and Fitch upon the other, and the questions discussed in the briefs before us, have reference exclusively to their rights and obligations.
In our opinion, under a fair and reasonable construction of the terms of. the contract, Willard’s undertaking was simply to convey what title he had. He was to furnish an abstract of his title to Fitch, that he might judge for himself as to its sufficiency. If the title was free from reasonable objection, Fitch was bound to accept it; if not, he might either accept or reject it, as he should elect. The clause, “ the seller to furnish satisfactory abstract of title, and to give a quit-claim, or special warranty deed, and upon a tender of which, the cash payment to be made, and deferred payments secured by trust deed, and power of sale,” manifestly implies no undertaking as to the character of the title to be conveyed, but, on the contrary, clearly shows that Willard was unwilling to assume any responsibility on account of his title any further than it may have been affected by his own acts. If words had been used showing that Willard undertook to convey a good title, as in the cases cited in the brief for appellant, on this point, the case would have been quite different.
The contract was executed on the 14th day of December, 1867, and the bill in this case was not filed until the 15th day of Hay, 1873, a period of five years and five months, lacking one day, intervening, during which appellant made no offer to comply with his contract. This is such laches as must necessarily preclude his right to the relief prayed for, unless it is satisfactorily explained.
It is attempted to be explained by these circumstances: When Winston, Willard’s agent, presented the abstract of his title to Fitch, it was discovered that, by the terms of the power in the mortgage from James Boggs, George Boggs and Bedmon Colter to Julius Crane and William P. Apthorp, by virtue of a sale under which Willard’s title was derived, while the assignee was authorized to sell, the mortgagees were alone empowered to convey the title, after sale, and it was claimed that Willard’s deed to Smith, therefore, being the conveyance, simply, of an assignee who did not hold the legal title, was ineffectual for the purpose intended; that this objection was pointed out to Winston, and that, to obviate it, it was understood, inasmuch as Bedmon Colter had conveyed his interest in the property to James and George Boggs before the sale, and James Boggs had executed his deed and placed it in Winston’s hands, to be delivered at the same time with Willard’s deed, it would only be necessary to obtain a deed from George Boggs; that Winston encouraged appellant in trying to obtain the deed from George Boggs, during which efforts considerable time elapsed; that appellant was placed in possession of the property by Willard, and made valuable improvements thereon; that in October, 1868, George Boggs filed his bill in chancery against Willard, Fitch and others, claiming to be owner of one-half of the property, and asking to be allowed to redeem from the mortgage under which it had been sold, and that the sale be set aside; that in this bill it was alleged, Fitch had a contract with Willard for the purchase of the land, and was in possession; that Fitch answered, setting up his contract and possession thereunder, and claiming to be a Vona fide purchaser thereof in good faith, without notice, etc.; that Willard also answered, and, among other things, his answer contained this clause: “ and defendant further admits, that a contract was made by his duly authorized agent for the sale of his interest in said property to John Fitch, and that he has learned that said Fitch has taken possession of said land under said contract;” that Winston was the attorney of Willard in preparing his answer, and Goudy was the attorney of Fitch in preparing his; that subsequent to the filing of these answers, and before the case came on for hearing, Winston employed Goudy to represent Willard also in the suit, agreeing to pay one-half his fees; that thenceforth Goudy represented both Willard and Fitch while said case was pending in the several courts; that decree pro forma was rendered in the court below in favor of George Boggs, from which an appeal was taken to this court, whore, in September, 1871, judgment was rendered reversing th& pro forma decree; that in consequence of the great fire in Chicago, which happened shortly after this, the mandate of this court was not filed in the court below until in June, 1872, at which time motion was made in the court below to certify the cause to the Circuit Court of the United States for the ¡Northern District of Illinois; that upon this being refused, application was made in the United States Court for an order directing that the case be brought before it; that upon this being refused, the attorney of George Boggs gave notice to Goudy that he would prosecute a writ of error on the record to the Supreme Court of the United States, and that he did sue out a wit of error on the record to this court, which was pending at the time of the hearing.
The evidence does show that when the objection was urged to Willard’s title that George Boggs had an interest in the property, Winston did not deny it, and he encouraged Fitch in making an effort to obtain it. It also shows, however, that he expressly disclaimed any authority to incur expense on behalf of Willard on that account, and it is not pretended that any definite agreement was made giving Fitch time to obtain that title. Indeed, it is very certain that Winston had no authority to make such an agreement, and this Fitch is chargeable with knowing, for he had seen the letters from Willard to James Boggs, dated Hov. 18, 1867, and from Willard to Blodgett and Winston, dated Dec. 10, 1867, which contained all the authority with which he was vested. These letters show, as plainly as did the letter in Baxter v. Lamont, 60 Ill. 237, that only a present sale, or, at least, one to be consummated within a reasonable time, was contemplated. The position assumed by counsel, that Winston was a general agent, having full power to use his discretion in regard to the sale, is not sustained by the evidence. It clearly appears, that both before and subsequent to the sale he disclaimed any such power, in conversations with Fitch and his agents. He was, generally, the attorney at law representing Willard in such matters as required the attention of an attorney at law, but in respect to the sale and management of property he only acted when specially empowered to do so.
Although the answer of Willard to the bill filed by George Boggs admits the execution of the contract by his agent, it does not undertake to give construction to its terms, and we are aware of no principle upon which it can be held to be an admission that the construction then claimed by Fitch was correct. There was no issue there made between Willard and Fitch, and it is not perceived how any could have been adjudicated in that proceeding settling their rights with reference to each other. The employment of Goudy by Winston for Willard, appears to have been induced solely by Winston’s confidence in his ability as a lawyer, and without reference to any question that may or may not have been in dispute between Willard and Fitch.
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Mr. Justice Scholfield
delivered the opinion of the Court:
James Boggs claimed to have no substantial interest in the subject matter of the contract, and he was joined therein only for the purpose of releasing any possible equity he might have. The real contracting parties were Willard upon the one side, and Fitch upon the other, and the questions discussed in the briefs before us, have reference exclusively to their rights and obligations.
In our opinion, under a fair and reasonable construction of the terms of. the contract, Willard’s undertaking was simply to convey what title he had. He was to furnish an abstract of his title to Fitch, that he might judge for himself as to its sufficiency. If the title was free from reasonable objection, Fitch was bound to accept it; if not, he might either accept or reject it, as he should elect. The clause, “ the seller to furnish satisfactory abstract of title, and to give a quit-claim, or special warranty deed, and upon a tender of which, the cash payment to be made, and deferred payments secured by trust deed, and power of sale,” manifestly implies no undertaking as to the character of the title to be conveyed, but, on the contrary, clearly shows that Willard was unwilling to assume any responsibility on account of his title any further than it may have been affected by his own acts. If words had been used showing that Willard undertook to convey a good title, as in the cases cited in the brief for appellant, on this point, the case would have been quite different.
The contract was executed on the 14th day of December, 1867, and the bill in this case was not filed until the 15th day of Hay, 1873, a period of five years and five months, lacking one day, intervening, during which appellant made no offer to comply with his contract. This is such laches as must necessarily preclude his right to the relief prayed for, unless it is satisfactorily explained.
It is attempted to be explained by these circumstances: When Winston, Willard’s agent, presented the abstract of his title to Fitch, it was discovered that, by the terms of the power in the mortgage from James Boggs, George Boggs and Bedmon Colter to Julius Crane and William P. Apthorp, by virtue of a sale under which Willard’s title was derived, while the assignee was authorized to sell, the mortgagees were alone empowered to convey the title, after sale, and it was claimed that Willard’s deed to Smith, therefore, being the conveyance, simply, of an assignee who did not hold the legal title, was ineffectual for the purpose intended; that this objection was pointed out to Winston, and that, to obviate it, it was understood, inasmuch as Bedmon Colter had conveyed his interest in the property to James and George Boggs before the sale, and James Boggs had executed his deed and placed it in Winston’s hands, to be delivered at the same time with Willard’s deed, it would only be necessary to obtain a deed from George Boggs; that Winston encouraged appellant in trying to obtain the deed from George Boggs, during which efforts considerable time elapsed; that appellant was placed in possession of the property by Willard, and made valuable improvements thereon; that in October, 1868, George Boggs filed his bill in chancery against Willard, Fitch and others, claiming to be owner of one-half of the property, and asking to be allowed to redeem from the mortgage under which it had been sold, and that the sale be set aside; that in this bill it was alleged, Fitch had a contract with Willard for the purchase of the land, and was in possession; that Fitch answered, setting up his contract and possession thereunder, and claiming to be a Vona fide purchaser thereof in good faith, without notice, etc.; that Willard also answered, and, among other things, his answer contained this clause: “ and defendant further admits, that a contract was made by his duly authorized agent for the sale of his interest in said property to John Fitch, and that he has learned that said Fitch has taken possession of said land under said contract;” that Winston was the attorney of Willard in preparing his answer, and Goudy was the attorney of Fitch in preparing his; that subsequent to the filing of these answers, and before the case came on for hearing, Winston employed Goudy to represent Willard also in the suit, agreeing to pay one-half his fees; that thenceforth Goudy represented both Willard and Fitch while said case was pending in the several courts; that decree pro forma was rendered in the court below in favor of George Boggs, from which an appeal was taken to this court, whore, in September, 1871, judgment was rendered reversing th& pro forma decree; that in consequence of the great fire in Chicago, which happened shortly after this, the mandate of this court was not filed in the court below until in June, 1872, at which time motion was made in the court below to certify the cause to the Circuit Court of the United States for the ¡Northern District of Illinois; that upon this being refused, application was made in the United States Court for an order directing that the case be brought before it; that upon this being refused, the attorney of George Boggs gave notice to Goudy that he would prosecute a writ of error on the record to the Supreme Court of the United States, and that he did sue out a wit of error on the record to this court, which was pending at the time of the hearing.
The evidence does show that when the objection was urged to Willard’s title that George Boggs had an interest in the property, Winston did not deny it, and he encouraged Fitch in making an effort to obtain it. It also shows, however, that he expressly disclaimed any authority to incur expense on behalf of Willard on that account, and it is not pretended that any definite agreement was made giving Fitch time to obtain that title. Indeed, it is very certain that Winston had no authority to make such an agreement, and this Fitch is chargeable with knowing, for he had seen the letters from Willard to James Boggs, dated Hov. 18, 1867, and from Willard to Blodgett and Winston, dated Dec. 10, 1867, which contained all the authority with which he was vested. These letters show, as plainly as did the letter in Baxter v. Lamont, 60 Ill. 237, that only a present sale, or, at least, one to be consummated within a reasonable time, was contemplated. The position assumed by counsel, that Winston was a general agent, having full power to use his discretion in regard to the sale, is not sustained by the evidence. It clearly appears, that both before and subsequent to the sale he disclaimed any such power, in conversations with Fitch and his agents. He was, generally, the attorney at law representing Willard in such matters as required the attention of an attorney at law, but in respect to the sale and management of property he only acted when specially empowered to do so.
Although the answer of Willard to the bill filed by George Boggs admits the execution of the contract by his agent, it does not undertake to give construction to its terms, and we are aware of no principle upon which it can be held to be an admission that the construction then claimed by Fitch was correct. There was no issue there made between Willard and Fitch, and it is not perceived how any could have been adjudicated in that proceeding settling their rights with reference to each other. The employment of Goudy by Winston for Willard, appears to have been induced solely by Winston’s confidence in his ability as a lawyer, and without reference to any question that may or may not have been in dispute between Willard and Fitch. These facts authorize the inference that Willard knew Fitch claimed rights under the contract which he was incurring expenses to vindicate, but, so far as we perceive, nothing more.
The answer of Willard to the George Boggs bill does not admit, as a fact, that Fitch was in possession under the contract, but simply that he had learned that Fitch had taken possession of the land under the contract. The evidence rather tends to prove that Fitch took possession of the land tortiously, in violation of the rights of a tenant in possession, and without the knowledge or consent of Willard or his agent. Fitch himself swears differently, but the preponderance seems to be against his evidence in this respect. To say the least, the evidence does not clearly show that Fitch went into possession, in fact, under the terms of the contract.
Winston swears that he had the deeds of Willard and James Boggs in his custody, shortly after the execution of the contract, ready to be delivered to Fitch, and that he notified Fitch, or his agent, of the fact. Fitch admits that he knew Winston had the deeds, ready to be delivered to him, and that he would not have received them, had they been actually offered to him, until the objection to the title, on account of the supposed interest of George Boggs, was removed. Insisting on this obj ection, he, practically, rejected the very title which he now asks be decreed to him, for it was not necessary that the useless form should have been gone through with of offering a deed which it was known would not be accepted.
Without undertaking to determine whether the objection to the title was reasonable or not, it is sufficient, for the present purpose, if it was unreasonable, the refusal to accept the title then ready to be delivered precludes any claim to the relief now sought. Kimball et al. v. Tooke et al. 64 Ill. 380; Doyle v. Teas, 4 Scam. 202. If, however, it was reasonable, then, to the extent Fitch might elect to take the title, notwithstanding the objection, the contract was unilateral, and, in such cases, any delay on the part of the purchaser in complying with it is regarded with especial strictness. Estes v. Furlong, 59 Ill. 300.
Fitch admits that Winston denied that he was authorized to to assist him in getting the title of George Boggs, and that he claimed to have authority, only, to sell the title Willard had. At no time does it appear that Winston’s authority in this regard was enlarged. Willard himself, it is not pretended, ever undertook to make any terms with Fitch in regard to the property.
Knowing, then, Willard’s unwillingness to incur expense to perfect the title, and that the contract made related only to the title he then had, what reason could Fitch have for supposing that Willard intended to allow him to await the result of the litigation with George Boggs, before he determined whether he would accept Willard’s deed or not?
Something over four years elapsed after the filing of Willard’s answer to the bill of George Boggs, before the commencement of this suit. During all that time, Fitch made no offer to comply with the contract. Even after he was notified, in wilting, by Willard, that the contract was rescinded, and an action of ejectment was commenced against him to recover possession of the property, he made no offer to comply with his part of the contract, but, after waiting for some seven months, he filed the present bill. It does not appear, from the evidence of Fitch, that he made this contract with the view of acquiring the property for his personal use, but the inference to be drawn therefrom is, that it was merely for the purpose of speculation. By his negligence in complying with his contract, Willard’s money has remained, from the time the contract was made, tied up in this property, while his has been free, to be used in other speculations, as his inclination determined. In effect, to decree a specific performance in the present instance is, to decree so much money as is equal to the increased value of the property, beyond the contract price, out of Willard’s pocket, and into that of Fitch, on account of a contract under which Fitch assumed no absolute liability and ran no risk. It is usual,, and much better, in cases of this character, to leave the parties to their remedy at law.
We are of opinion that Fitch has been guilty of such laches in performing his part of the contract, as renders it inequitable that he should have the relief prayed for. See Cox v. Montgomery, 36 Ill. 396; Mason v. Owens, 66 id. 260; Taylor v. Merrill, 65 id. 59; Shortall v. Mitchell, 57 id. 161.
The decree of the court below is affirmed, and the cause will he remanded to the court below to take an account pursuant to the stipnlation of the parties as embodied in the record.
Decree affirmed.