Polzin v. Polzin

110 Ill. App. 187, 1903 Ill. App. LEXIS 604

• Court: Appellate Court of Illinois
• Decided: October 30, 1903
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court.

The condition in the deed runs with the land, and is a continuing charge upon it. The charge upon the land can not be deemed a rent of any description; nor can it properly be considered as an annuity, because by an annuity the person alone is charged; here the land is charged. The condition in the deed has given to appellee a particular interest in the land. It has imposed upon it an incumbrance which follows it into the hands of the widow and heirs at law of the grantee.

The amount due and to become due to appellee is a lien as well upon the interests of the brothers and sisters of Henry Polzin in the premises as upon that of appellant. The conveyance was by a mother to a son, upon the express condition that he pay her $17.25 on the first day of each month during her life. The performance of such a condition, the punctual payment of money so reserved, is an obligation xvhicli a court of chancery will, and perhaps only can, enforce.

Appellant’s rights of homestead and dower are junior and subject to the rights of appellee to the money reserved to herself in her deed to appellant’s husband. It was the manifest duty of the court to protect appellee and those xvho, as tenants in common, are the owners in fee of an undivided one-half of said premises, subject to existing liens thereon and rights therein.

It is but just and equitable, both to them as well as to appellee, that appellant should apply a portion of the rents of said premises to the payment of the amounts due and to become due to appellee under the terms and conditions of said deed. For more than six years no payment has been made to appellee and the amount now due her is more than 81,300.

In our opinion, the record discloses a case where a court of chancery might, in the exercise of the discretion vested in the court in such matters, properly appoint a receiver, and the order appealed from will be affirmed.