delivered the opinion of the Court:
In the present ease the defendant below filed no answer. Default was entered against him. One of the questions arising upon the assignments of error is whether the bill states such a •case as justifies the decree entered in the cause. (Perkins v. Hadsell, 50 Ill. 216; Smith v. Brittenham, 98 id. 188.)
It may be admitted, as it seems to be assumed by both par-lies, that, in the absence of any plea of the statute of frauds, the verbal agreement set-up in the bill could be enforced in iavor of Charles Walters or his heirs, if he or they had performed his part of such agreement.
Omitting the other provisions of the contract and passing over its details, we may state its substance in brief as follows: Charles was to have a home on the farm and support therefrom for himself and family during his father’s life, and was lo have the farm itself and a certain amount of money at the death of his father, in consideration of his staying on the farm and managing and cultivating it and surrendering the proceeds ■of it to his father during the latter’s life, and permitting his father and mother to make their home thereon and have their •support therefrom, as long as they each should live, and in further consideration of his paying $200.00 to each of his fhree brothers at his father’s death.
As Charles died in April, 1887, and as his father and mother are still alive, it is manifest that he did not perform his part ■of the contract. It is true that death rendered it impossible for him to accomplish such performance, but it is equally true that his father has not received from him the management -and cultivation of the farm, nor the surrender to himself of its proceeds, for the length of time agreed upon. The plaintiff in error is in no default. By the terms of the agreement, he was -¡to do nothing in his lifetime either in the way of paying money, or giving up the farm. The money was not to be paid, and the farm was not to pass to his son, until after his own death, which has not yet occurred.
If this agreement is not one, which has its basis exclusively in the love and affection existing between the father and son and in the desire of the former to have the society as well as the services of the latter; in other words, if the things to be done by Charles were not personal to him, but are such as can as well be done since his death by other parties, then it is to be noted that the complainants below, the widow and heirs of Charles, do not offer in their bill to perform for the deceased his unfulfilled part of the agreement; and this is true notwithstanding the allegation of the bill, that the widow worked in the field and otherwise labored on the farm with her husband in his lifetime, and since his death has continued to cultivate the land and “to carry on said farm and work in the field in-raising the crops raised in the years 1887 and 1888.” The general rule is, that, to entitle a party to specific performance, he must show that he has been in no default in having performed his part of the agreement, and that he has taken all proper steps towards the performance on his part. The obligation in this regard rests as well upon the heir as upon the ancestor. (Walker v. Douglas, 70 Ill. 445; Cronk v. Trumble, 66 id. 428.)
The charge made against the plaintiff in error is, that he is under the influence of his wife and his living sons, and that these latter may induce him to sell or convey the farm. If the danger of such sale or conveyance constituted sufficient reason for furnishing relief to the defendants in error, such relief could be secured by enjoining the sale or conveyance of the farm. The decree in this case, however, does not stop at a simple injunction; it takes the property of plaintiff in error out of his hands and puts it in the hands of a trustee or receiver. By the terms of the contract with his son, as set up in the bill, all the proceeds of the farm were to be surrendered to him during his lifetime; by the terms of the decree entered herein, the trustee appointed by the court is to take charge and custody of the farm and keep and dispose of the rents and proceeds until the death of plaintiff in error and his wife, and plaintiff in error and his wife are only to be paid out of such proceeds so.much as may be necessary for their reasonable support., The trustee cannot afford to manage the farm and perform the other services specified in the decree without being paid therefor, and thus the property of plaintiff in error is burdened with the compensation of an outside party acting as manager, besides being made to support the widow and children of his son, in addition to the support of himself and his wife. We do not think that the case as made by the bill justified that portion of the decree which placed the farm in the hands of a trustee.
The decree finds that, under the contract; the defendant below was to take all of the proceeds of the grain and stock raised on the farm to pay off what he then owed thereon, except what might be necessary for the' expenses of cultivating the land and supporting the two families, and that Charles, cultivated and labored on the farm and paid over its proceeds for about eleven years “when he died, and that the whole of the debts of said defendant on said premises were therefore fully paid off.” There is not one word in the contract, as set up in the bill, about the debts of defendant, nor any allegation therein that any such debts existed, or that they were paid off. Nor is there anything in the testimony appearing in the record about the existence or payment of such debts.
The contract, alleged in the bill, states that Charles was to pay $200.00 to each of his three brothers at his father’s death; the decree finds the contract to have been that he was to pay $200.00 to each of two brothers. The only evidence to sustain the finding of the decree is the testimony of one Kingman, who says he heard Henry Walters say at one time that the sons except Fred were to get $200.00 each at his death—and of Katie Walters, the widow of Charles, who says that her husband was to pay “$200.00 to Henry and Christ” at his father’s ■death. “The decree must be confined to the pleadings. One case cannot be made by the bill and relief granted on another .and different case made by the proofs.” (Marvin v. Collins, 98 Ill. 510).
The decree finds that the stock and produce on the farm at the death of Charles amounted to $2000.00, “all of which arose from the care and labor of Charles under said contract,” and that in 1877 the premises were worth $4000.00, but, at the death of Charles, “by reason of his labor and improvement thereof, the same were worth $7000.00.” There is no allegation in the bill that corresponds with this finding, and nothing in the proofs to justify it. It would appear from the testimony that all the proceeds of the farm were not- applied in its improvement, as one of the witnesses says that “he (Charles) and his wife did the most of the farm work and the proceeds were applied on the payment of some land they had bought.” King-man does say that the land was worth $4000.00 in 1877, and that its value in 1888 was $7000.00, but there is nothing to indicate that this difference was due to any other cause than the natural increase in value which would be apt to take place ■during a period of ten or twelve years.
The decree seems to proceed upon the theory, that Charles had virtually paid for the farm at his death because his labor ■and services for ten years were worth as much as the farm was worth. But the contract was that he should cultivate the farm, ■and support his father thereon, and yield him the proceeds thereof as long as his father lived, without reference to the ■value of the farm, or the value of his labor and services, or the ■value of the one as compared with that of the other. In this regard the decree is not confined to the pleadings, and is not warranted either by the pleadings, or the pfoofs.
By the decree the court below also found “that the equitable .Tight and title in and to said premises is in said heirs of .Charles Walters subject to the dower of said Katie therein.” This finding is erroneous in two particulars. In the first place, when Charles died he did not own the equitable title in the premises because his contract' had not been performed. A mere contract to convey at a future time, upon the performance of certain acts by the purchaser, does not create an equitable title. “It is but an agreement that may ripen into an equitable title. When the purchaser performs all acts necessary to entitle him to a deed, then, and not till then, he has an equitable title and may compel a conveyance.” (Chappell v. McKnight, 108 Ill. 570). In the second place, the widow of Charles was not entitled to dower in the premises because her husband’s interest therein had not ripened into an equitable estate. Where there is a contract to purchase, and the purchaser has not paid the ■entire purchase money in his lifetime, and, so, has not become invested with an equitable fee, no right to dower attaches at his death. (Greenbaum v. Austrian, 70 Ill. 591.) Here, the •services agreed to be performed by the son are to be regarded the same as purchase money, and such services unperformed must be treated as purchase money unpaid.
This decree is erroneous in still another respect. It orders ■and decrees, “that, on the death of Henry Walters and the payment of said sums *' * * of $200.00 each, title in fee of said premises shall by virtue hereof vest in said heirs of Charles,” •etc. By thus decreeing in advance that at a future time the title in fee shall vest by virtue of the decree itself, the court .has not only assumed to pass the legal title without the intervention of conveyances, but has stopped beforehand the operation of the statute of descents. Upon the death of plaintiff in • error the legal title to his farm would descend to his heirs. The defendants in error, if entitled to the fee, would be bound to commence a proceeding against such heirs and obtain a decree that they convey within a certain time, or, in default *of such conveyance, that a commissioner convey.
At common law, a judgment in partition vested the legal title without the execution of conveyances, but this was for the reason that the judgment merely vested in severalty the title which the parties already owned as tenants in common. In this State, even in a partition proceeding, a decree did not vest the title without deeds until a statute was passed giving to the decree such an effect.
We cannot resist the conclusion that this proceeding was conducted with too much haste, and without giving the parties interested in opposing it a proper opportunity to be heard. The bill was filed on August 31, 1888, and the final decree was entered on September 25, 1888. The sole defendant is a man over seventy two years of age, who is described by one of the witnesses as being “broken down both mentally and physically.” Summons was served upon him on August 31, 1888. On Monday, September 10, 1888, being the first day of the September term of the Circuit court of Tazewell County, he was ruled to answer by Wednesday morning, September 12. On the last named morning the rule to answer was vacated, and leave was given to the complainants to amend their bill, and, at the same time, the defendant was ruled to answer the bill as amended by the coming in of court on the morning of Friday, September 14. On the fourth day of the term, which was Thursday, September 13, an order was entered, reciting ¡ that defendant had failed to comply with the rule to answer the amended bill and entering a default against him for failure to “answer under the rule.” It thus appears, that default was entered against him before the expiration of the time within which the rule required him to answer. The record nowhere shows what the amendment to the bill was, or that any amendment was made to the bill. On September 25, the master of the court filed two depositions taken by him on behalf of the complainants on September 20, and, in his caption thereto, he states that they are taken in pursuance of an order entered ;on September 14 referring the cause to him to take proofs; but, beyond this recital in the caption, we find nothing in the-record to show that any such order of reference was entered.
The three living sons of the defendant, and his wife, and the administrator of the estate of Charles, are shown upon the face of the bill to be necessary parties. The decree does not stop with making a provision that its findings are subject to the rights of the persons above named, who are not made parties. It actually adjudicates upon those rights in the absence of such parties. The wife of the defendant was to have a home on the farm and be supported therefrom after her husband’s death. The three brothers were each to have $200.00 after their father’s death. They were thus interested in the subject matter of the suit, and were entitled to be heard in reference to such interests. The decree fails to give one of the brothers the $200.00 which, according to the allegations of the bill, was to be paid to him. As the decree is not binding upon him, he may choose to litigate the matter after his father’s death, and, if he succeeds in establishing his right to the $200.00, the decree in this suit will have vested the title in the heirs of Charles without compliance with one of the preliminary conditions.
The complainants, in their bill and in their proofs, seem to claim that a money indebtedness from the plaintiff in error to his son Charles existed before the death of the latter. If so, such indebtedness passed to the administrator of the estate of Charles, and hence such administrator should have been made a party, especially as the case made by the defendants in error1 contemplates the application of such indebtedness towards the purchase of the farm. Section 111 of the Act in regard to the administration of estates (Starr & C. Stat. vol. 1, page 241) provides in certain cases, where a party has made a contract for the purchase of land and has died without completing it, that his administrator may complete the payment of the purchase. money out of the personal property.
The complainants have introduced in evidence a written obligation entered into by plaintiff in error since the death of his son, Charles, in which the plaintiff in error agrees that in consideration of his son having lived and worked during his lifetime on the farm, there shall be paid out of plaintiff in error’s estate at his death the sum of $2000.00 to his son’s widow for her use and the use of her two children, and in which plaintiff in error further agrees to pay such widow for the support of herself and children interest at six per cent per annum on said sum annually, beginning on September 1,1888. The written obligation thus referred to closes as follows: “I hereby enjoin on my heirs and administrators to make payment at my death as above as I am justly indebted to my deceased son and his widow in the sum of $2000.00.”
Whatever may be the outcome of the present litigation as to the ownership of the farm, the defendants in error are entitled to be protected, in any event, to the extent of the obligation which the plaintiff in error himself thus admits.
The decree of the Circuit Court is reversed, and the cause is remanded to that court. Decree rff0ersedm