delivered the opinion of the Court:
This writ brings before us the record of a decree of the circuit court of McLean county, directing the specific performance of a contract for the conveyance of a twenty-acre tract of land therein described. The contract was reduced to writing, and the consideration for the conveyance of the twenty-acre tract was, that “said Prince agrees to procure for said Dulin a good right to the north-east quarter of section 26, township 13, range 23, in Trego county, Kansas, as a homestead.” It is contended, on behalf of plaintiffs in error, that the defendant in error never was in a condition to comply with his part of the contract, because he never had title to the land, and never had any right of homestead in himself.
The evidence shows that the parties, when they made this contract, had in view government lands, and that the right of homestead in contemplation was that secured by the United States statute to settlers, as a means of becoming owners. In that light we think the covenant was only to procure for plaintiffs in error the right to become occupants of the particular tract, as claimants of a homestead. It was not necessary that the defendant in error should have made any formal tender of performance, because the evidence clearly shows that plaintiffs in error wholly abandoned the contract and refused to perform it before the date at which defendant in error was required to or could have procured for plaintiffs in error the stipulated right. Mathison v. Wilson, 87 Ill. 51; Towner v. Tickner, 112 id. 217; Lyman v. Gedney, 114 id. 390.
But it is objected that plaintiffs in error are not awarded the homestead right by this decree. That was impossible, since it is shown by the evidence that by reason of their noncompliance with the contract the right is wholly lost. When the decree was rendered the right had ceased to exist in the defendant in error, through no fault of his.
It is finally objected, that there is a variance between the allegations and the proofs, in this: It is alleged in the bill that the defendant in error had fully performed all the covenants and agreements, but the proofs only show a waiver of performance by the plaintiffs in error. This objection comes too late. It should have been made in the lower court, before the case had passed beyond its control. Muttoon v. Fallin, 113 Ill. 249.
We perceive no sufficient reason for disturbing the decree. It is therefore affirmed.
Decree affirmed.
Mr. Justice Scott : I do not concur in this opinion.