dissenting.
I do not agree with the majority opinion holding that the option was properly exercised.
The type of deed and the evidence of title to be supplied are “academic” only in the sense that the party claiming under the option is seeking money rather than the possession of land. The fundamental issue is whether or not a court should order specific performance of the contract. It appears to me that the language of the majority opinion introduces elements of implication and construction never heretofore employed by the courts in requiring the specific performance of contracts.
I cannot agree that Gaskins v. Walz, 409 Ill 40, 97 NE2d 798, justifies distinguishing this case from Morris v. Goldthorp, 390 Ill 186, 60 NE2d 857. In the former case the lease expressly provided that the lessor should furnish “complete abstracts of title” and that the lessor should deliver “. . . a good and suffieient warranty deed conveying the premises . . . free and clear from all encumbrances.”
In Graskins the lessor contended that the provision of the notice wherein lessee made “request” for an abstract “showing a good and merchantable title” imposed a new condition. While the Supreme Court did not cite the case, in Deem v. Miller, 303 Ill 240, 135 NE 396, it was held that a contract for conveyance “by a good and sufficient warranty deed” required conveyance of a title good in law, “which means a good merchantable title,” (Page 240). Under the language of the contract providing for a complete abstract and a good and sufficient warranty deed there was, in fact, no real issue as to whether new conditions arose through the language of the acceptance, for the contract actually required what was requested.
The majority opinion refers to “unequivocal exercise” of the option, there being no conditions attached. This phrase seems to be taken from the Graskins opinion, and under the interpretation of that opinion stated immediately above such was true. In this case the notice concluded with the language:
“. . . . and the purchase price will be available upon the furnishing of a merchantable abstract of title and warranty deed.”
This language introduces three items never referred to in the contract. They are, (a) an abstract; (b) a merchantable title; and (c) a warranty deed. Our Supreme Court has held that a contract for a good title and a warranty deed does not require the vendor to furnish an abstract of title. Turn Verein Eiche v. Kionka, 255 Ill 392, at 396 and 397, 99 NE 684. The Supreme Court has also held that a contract to sell real estate does require delivery of an unencumbered fee simple title unless a lessor estate is specified, but has stated, at least by inference, that this does not require merchantable title. Gaskins v. Walz, 409 Ill 40, p 44, 97 NE2d 798.
It is submitted that this case comes squarely within the rule of Morris v. Goldthorp, 390 Ill 186, 60 NE2d 857. There the contract did not provide for a warranty deed, but it did specify that the property would be conveyed subject to certain special assessments and taxes. The notice of the exercise of the option added in the same sentence:
“. . . . and ask that you advise me by return mail when and where within the next four days I may pay the said money to you and at that time you deliver to me properly executed your Warranty Deed conveying all said property to my nominee as provided for in aforesaid contract.”
The court held that since the option did not provide for a warranty deed, the acceptance did not meet the offer, for the warranty deed called for would necessarily warrant against the back taxes and special assessments to which the conveyance was specifically made subject under the agreement.
It is to be noted that the optionee in Goldthorp contended that the request for a warranty deed should be separated from the acceptance of the option, and that such construction was expressly refused by the court.
In this case the acceptance not only calls for an abstract showing good ..and merchantable title, but also calls for a warranty deed. The warranty deed would bring into operation the statutory warranties that the lessor was lawfully seized of an indefeasible title with good right and power to convey, that the land was free from all encumbrances, and that the lessee warranted quiet and peaceable possession and would defend against all persons who may lawfully claim the property. (Ill Rev Stats 1963, c 30, § 8.)
It has been held that a grantee’s notice of encumbrance against the land, or knowledge of facts constituting a breach of the warranty existing at the time of the conveyance, does not release the grantor’s covenant nor does it prevent recovery for the breach of the statutory warranty. Weiss v. Binnian, 178 Ill 241, 52 NE 969; Ibbetson v. Knodle, 201 Ill App 373, (1917).
Upon notice of a paramount claim, one bound by a covenant may be required to defend. Biwer v. Martin, 294 Ill 488, 128 NE 518.
Lessees’ prayer for withdrawal of the amount deposited by the State asks that the Clerk of the court be directed to pay to the lessees the said sum of money:
“. . . . without prejudicing in any way their rights in the latter stages of the proceeding when the just compensation will finally be ascertained by a jury trial.”
They were, at least formally, saving their rights for a greater sum of money than that deposited by the State. A dissenting opinion cannot decide, at this time, whether the lessor would be required to defend the condemnation suit and try for greater compensation by reason of the statutory warranties.
Since the issue in this ease is essentially one of whether specific performance should be allowed, it seems clear that there should not be a deviation from the principle that an option must be accepted in its exact terms. Morris v. Goldthorp, 390 Ill 186, 60 NE2d 857; Illinois Law and Practice, Landlord and Tenant, §133.
The majority opinion suggests that all agreements, “have implied promises or conditions,” and that the requirements as to the abstract and the warranty deed in the notice are simply matters of request or suggestion, and that the lessor was simply obliged to provide some form of deed and evidence of title.
It has long been the rule that to obtain specific performance of a contract such contract must he com-, píete in itself without necessity for further negotiation or agreement. Young v. Kowske, 402 Ill 114, 83 NE2d 500; Borg-Warner Corp. v. Anchor Coupling Co., 16. Ill2d 234, at p 256, 156 NE2d 513. If, as stated in the acceptance notice, the money is to be available when the abstract and warranty deed are supplied, the language of the majority opinion implies negotiation, if not litigation, just as occurred in the G-oldthorp case.
In view of the conclusion of this dissent that there are substantial questions of right and liability apparent in this case, I believe that the better rule is that heretofore stated by the courts, that they will not make a new contract as an incident to specific performance. Morris v. Goldthorp, 390 Ill 186, 60 NE2d 857; White v. Lang, 401 Ill 219, p 223, 81 NE2d 897; Borg-Warner Corp. v. Anchor Coupling Co., 16 Ill2d 234, at p 256, 156 NE2d 513.
There are no facts in this case which justify deviation from the several rules heretofore established and the judgment of the trial court should he affirmed.