delivered the opinion of the Court:
This was a bill in chancery, in the LaSalle circuit court, by John S. Teed against John C. Corbus and James Hastings, to enforce the specific performance of a written agreement, entered into by complainant with defendant Corbus, and to which, it is alleged, his co-defendant, Hastings, has some claim, by assignment or otherwise.
The defendants filed their answer, and the cause went to a hearing, and testimony was heard, and a decree passed in favor of complainant—to reverse which defendants appeal, and make several points, which will be noticed.
The first point made by appellants is, that the contract set out in the bill of complaint was executed in duplicate, and that he, Corbus, over his hand and seal, executed, upon the back of the duplicate held by him, an assignment of the contract to Hastings, of which complainant had notice, and received payment upon the contract from Hastings as such assignee, which complainant indorsed upon the contract and appropriated to his own use, and which he never offered to refund to Hastings, but, in violation of his contract, executed and tendered such deed to him, Corbus. In this connection appellant Corbus questions the proper execution of the deed so tendered.
We do not suppose it was incumbent on complainant to take the hazard of the validity of the alleged assignment of the contract to Hastings. Had Hastings offered to pav the money stipulated by the contract to be paid, and produced the assignment, complainant would have been justified, no doubt, in executing the conveyance to him and taking up the contract for cancellation. But Hastings has done no such thing, nor has he offered to do so, and complainant had a clear right to hold Corbus, the party with whom he contracted, to the contract, and tender the deed to him in fulfillment of the contract. As this court aid in Comstock v. Hitt, 37 Ill. 542. it was optional with Hastings to perform or not—complainant could not compel him to perform. Should he file a bill for such purpose, the answer would be, that he had made no contract with complainant. Hastings, by the assignment, had right to pay the money and demand a deed. In such case a court of equity would, undoubtedly, compel a conveyance, if the transaction was bona fide. The offer of the deed to Corbus was according to the contract.
As to the proper execution of the deed tendered, it appears to have been executed by the wife of complainant, as his attorney in fact. It is complained there was no evidence of the authority so to act. The certificate of evidence does not purport to contain all the evidence. The court finds the deed was properly executed and tendered, and we must presume there was evidence which the court deemed sufficient to justify its finding. It does not appear, when the deed was tendered to Corbus he made any objection of this kind. Had that been the objection to receiving the deed, it could have been readily removed, by complainant executing one in his own name. There is no objection the deed does not fulfill the covenants in the contract, nor does it appear when the deed was tendered, Corbus declined it for the reason he had assigned the contract to Hastings.
The answer also alleges, that, after the execution of the contract, and after Corbus had assigned to Hastings, complainant executed a mortgage on the premises to one Gilman, to secure the sum of six hundred dollars, which was unpaid, and was a subsisting lien.
There is no proof whatever of the existence of any such mortgage lien or any other incumbrance on the premises; but appellants insist, as no replication was put in to the answer, the answer must be taken as true, and on this principle, the existence of the mortgage is established as an admission by complainant.
Section 32, of chapter 21, title “Chancery,” provides, after replication is filed, the cause shall be deemed at issue, and stand for hearing at the next term ; or, in default of filing such replication, the cause may be set for hearing upon the bill and answer—in which case the answer shall be taken as true, and no evidence shall be received unless it be matter of record to which the answer refers.
The record does not show this cause was set for hearing on the bill and answer, but it was heard without having been set for hearing, formally, on bill, answer, and proofs offered by both parties. In such case, this court has uniformly held that filing a replication was waived. The cause was tried by the court on evidence heard in open court, the parties willingly going into the trial on the understanding the issues were made up in due form. If so, then no advantage can be taken of the absence of a replication, but the facts alleged in the answer must be proved as in other cases. The cause was tried in form, evidence on both sides heard, which can not be, under the section cited, if the cause was heard on bill and answer. This court has often held, that parties going to trial willingly, without formal issues made up, will be considered as having waived the required formality to make up an issue. Webb v. Alton Ins. Co. 5 Gilm. 223; Armstrong v. Mock, 17 Ill. 166 ; Beesley v. Hamilton, 50 ib. 88, which cases are referred to in Strohm v. Hayes, decided at the present term, where this point was made. There is, then, no proof of this or any other incumbrance on these premises.
We do not perceive that complainant has been unmindful of his obligation under the contract. He tendered a deed, with fuller covenants than he had entered into, properly executed, and free from objection. It was then Corbus’ duty to pay the money. Headley v. Shaw, 39 Ill. 354. As to Hastings, if he was a bona fide assignee of the contract, he could have filed a cross-bill, tendered the money due, and had a decree in his favor.
We see no objection to the specific clauses of the decree suggested by appellants. The clerk was a proper custodian of the deed, with power to deliver it on payment of the purchase money. Complainant was not bound to divest himself of the title, until the money was paid to him, or until the time of redemption exiiired. If the premises sold for a small fraction of the amount due, and there was a redemption by either of the defendants, they would become the owners, and the complainant deprived of his money. Equal and exact justice required this security should remain to appellee.
The objection to that part of the decree which awards an execution against Corbus, for any unsatisfied balance of the purchase money that may remain after the sale, is in conformity with the ruling in Burger v. Potter, 32 Ill. 66.
We perceive no error in the record, and must affirm the decree.
Decree affirmed.