(145 N.E.) dent. While defendant in error testified that [ 5. Vendor and purchaser 133-Vendee held the grocery store sometimes brought in $100 a month, he also testified that he did not have anything to do with the running of the store aside from occasionally selling cigars or small articles-that his family ran the store. The item of $100 per month cannot be taken as evidence of his earning capacity subsequent to his injury, since he testified that he does not work in the store, and that he has been unable to do any work. His testimony is, if it be believed, that he is not partially but wholly incapacitated. This court held in Consolidated Coal Co. v. Industrial Com., 311 Ill. 61, 142 N. E. 498, that an award for partial disability on evidence that would, if true, support an award for total disability will not be disturbed, where the applicant is not complaining. That case is controlling here. bound by recitals as to final payment, and tract reciting agreement to make final payment Vendee, entering understandingly into con The judgment of the circuit court will be affirmed. Judgment affirmed. (313 III. 377) title 30 (1)-Affidavit that names of unknown heirs of deceased persons are unknown ineffective to make unknown persons parties to suit. Affidavit, in suit to quiet title, that unknown heirs and devisees of certain deceased persons are persons whose names are unknown, and not stating as fact that deceased persons named left unknown heirs or devisees, was ineffective to make unknown persons parties to suit. 7. Quieting title 30(1)-Separate affidavits of unknown owners and nonresident defendants required. Chancery Act contemplates filing of affidavit under section 7, to authorize suit to quiet title DIME SAVINGS & TRUST CO. v. KNAPP. against persons whose names are unknown, by 3. Specific performance 121 (8) — Vendee's lack of knowledge or understanding of contents of contract held not shown. In suit for specific performance of contract to buy land, evidence held not to show that defendant did not know or understand contents of contract, which was read and explained to him by complainant's president. 4. Specific performance 121 (8) - Vendee's signature of contract under duress or because of religious scruple against litigation held not shown. Evidence held not to show that vendee acted under duress of threats to sue him for damages, unless he signed contract sought to be specifically enforced, or was induced to sign it by any religious scruple against litigation. name and description of unknown owners, or unknown heirs or devisees of any deceased person, and another, under section 12, to warrant notice to nonresident defendants by publication. 8. Vendor and purchaser 231 (4)—Purchaser not chargeable with notice of record of instruments executed by strangers to title. Warranty deeds and mortgages and trust deeds by strangers to the title are not instruments with notice of the record of which a purchaser is chargeable. 9. Vendor and purchaser 130(2)—Abstract need not show perfect paper title, where faults, defects, or omissions are cured by existing facts or lapse of time. To establish good title, it is not necessary that abstracts show perfect paper title, without fault, defect, or omission, where cured by existing facts or lapse of time, 10. Specific performance 8-Ordinarily mat ter of right where contract valid and fair. Specific performance of contract to convey land is as much matter of course as action of damages for its breach, where contract is valid at law, fairly made, and unobjectionable in any features addressed to chancellor's discretion. Appeal from Circuit Court, Iroquois County; Frederick A. Hill, Judge. Suit by the Dime Savings & Trust Company, as executor and trustee under the will of Cyrus N. Roberts, deceased, against Carl Knapp. From a decree of dismissal, plaintiff appeals. Reversed and remanded, with directions. J. W. Kern and C. G. Hirschi, both of Watseka, for appellant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes W. E. Lewis, Free P. Morris, and Roscoe | to sell and convey the testator's real properC. South, all of Watseka, for appellee. DE YOUNG, J. The Dime Savings & Trust Company, as the executor of and trustee under the last will and testament of Cyrus N. Roberts, deceased, filed its amended bill of complaint against Carl Knapp in the circuit court of Iroquois county for the specific performance of a contract for the sale to Knapp of 200 acres of land in that county. A demurrer to the amended bill was sustained, the trust company elected to stand by its bill, and the bill was dismissed for want of equity. The trust company appealed to this court, and the decree was reversed and the cause remanded, with directions to overrule the demurrer. Dime Savings & Trust Co. v. Knapp, 307 Ill. 432, 138 N. E. 723. Knapp answered the bill and later substituted an amended answer, to which a replication was filed. The cause was heard on the merits, and the amended bill was dismissed for want of equity. The trust company has again appealed to this court. The allegations of the amended bill of complaint are set forth in the opinion in Dime Savings & Trust Co. v. Knapp, supra, and it is unnecessary to repeat them here. Knapp, the appellee, by his amended answer denies that a complete contract, fair and definite in its provisions, was entered into by the parties. In support of this contention he avers, in substance: (1) That appellant rep resented that the market value of the land was $350 per acre, and that it had a party | who was ready and willing to pay that price for the land, whereas its actual value did not exceed $250 per acre; that appellant promised, since appellee had no ready money, to lend him approximately $20,000, without which he could not consummate the purchase, but that, when requested, appellant refused to make the loan; and that appellee, relying upon the promise and representation so made by appellant, signed the contract; (2) that appellee cannot read, nor was the contract read to him, and that he did not know or understand its contents; (3) that appellee is a member of a religious organization which is conscientiously opposed to litigation of any character, that appellant's trust officer threatened to sue him for heavy damages if he did not sign the contract, and that the threat so frightened him that he signed it under duress; and (4) that the decree in the suit to quiet title, based on constructive service, is not final, and hence appellee is not obliged to accept the title based on such a decree. ty. After appellant's appointment it advertised the land for sale. On July 12, 1920, appellee wrote appellant a letter in which he stated that he had read the advertisement and asked the price and terms of payment. Appellant, by C. W. Frazier, its trust officer, replied the next day, stating that it had not placed any definite price on the land, but that it had a number of offers which it was considering; that it invited an offer from appellee, which would be given due consideration; that it could sell upon a small initial payment, with one-third cash on March 1 following, when possession would be given, and that the balance could be paid in 1, 2, and 3 years, with interest at 6 per cent. Three days later appellee appended to the foregoing letter an offer of $305 per acre for the land. Receiving no reply, he wrote again on July 29, 1920, stating that, if appellant did not wish to sell to him, he would like to rent the land, because he had farmed 80 acres of it for 4 years. On August 10 ap pellant replied, stating that its committee had authorized a price of $350 per acre for the land, and requesting from appellee, if interested in its purchase, an early answer. Appellee then went to Peoria, where appellant is located, and there on August 13 addressed a letter to appellant by which he offered $330 per acre for the whole tract of 200 acres, and $335 per acre for the south three 40-acre tracts, payable one-third in cash and the balance in 5 years, with interest at 6 per cent. Appellant answered on August 17, stating that its committee was not disposed to accept less than the original price of $350 per acre, that several persons were figuring on the land, that Frazier expected to call on the tenant within a few days, and that if the land had not then been sold he would call on appellee. Frazier visited appellee at his home on August 25, and after some discussion appellee purchased the land for $70,000, or at $350 per acre, payable $1,000 on that day, one-third of the balance on or before March 1, 1921, and the remainder in 5 years, with interest at 6 per cent. Appellee paid Frazier on the same day the initial $1,000, and secured from him a receipt acknowledging its payment and embodying the substance of the agreement. On September 2, 1920, appellant sent appellee a draft of the contract of sale in duplicate, and requested, if it was satisfactory, that he sign both, retain one, and return the other to appellant. Two days later, at the request of appellee, Guy Brown, assistant cashier of the Claytonville State Bank, wrote Cyrus N. Roberts, owner of the land here appellant with reference to the contract, statinvolved, died testate at Peoria on Janu- ing that appellee objected to paying interest ary 18, 1920. His will was admitted to rec- on the purchase-money mortgage semiannualord by the probate court of Peoria county only, and also to the forfeiture clause, and that February 20, 1920. Appellant was appointed he desired the privilege of making payment and qualified as the executor of the will, by of the principal at any time. The contract which it was given full power and authority was inclosed, in order that the suggested (145 N.E.) changes might be made, with the request that the contract, when amended, be mailed directly to appellee. On September 7, 1920, appellant replied that the changes suggested, except the one with reference to forfeiture, had been made. The forfeiture clause, it was stated, was the usual one, and a blank contract in proof of the assertion was sent. The abstract of title was also inclosed, with the suggestion that appellee could, if he wished, have it examined before signing the contract. Appellee took the abstract to Sam A. Brown, president of the Iroquois County State Bank, and after a conference with him it was sent to Stephen C. Malo, a lawyer, for examination. On October 8, 1920, appellee, by letter, returned the abstract to appellant with his attorney's opinion thereon. This opinion set forth certain objections to the title. These objections, he stated, could not, in the judgment of his attorney, be removed without a suit to quiet title. Not having received a reply, appellee again addressed appellant on October 27, 1920, and inquired whether it intended to clear the title. Shortly thereafter Attorney Malo went to Peoria and had an interview with certain officers of appellant, at which the objections he had urged to the title were discussed. In a few days he was notified by appellant to perfect the title. and the sale consummated, but should ap pellee fail to complete payment prior to March 1, 1922, he shall on that day pay to appellant as rental for the year ending March 1, 1922, a sum equal to 6 per cent. on $69,000 and the taxes for 1921. After the contract had been signed, Malo made preparations to begin suit to quiet the title to the land. The bill was filed on May 10, 1921, and on the 21st of June following, the decree was entered. Other things, also, were done to remove objections to the title, and the abstract was continued to show these things and the proceedings in the suit. Appellee was notified and requested to consummate the purchase by the 1st day of July. He replied on June 25, 1921, that he would be unable to do so by that time, that the title would have to be examined again, and that he required time to arrange for a loan. Again, on July 2, 1921, in reply to a letter from appellant, he wrote that he could not make settlement by July 6, and repeated that the examination of the title and the making of a loan required time. To this letter he added the postscript: "Will also kindly ask you if you would make the loan for 6 per cent. even, without commission, the way you promised me at first." On August 5, 1921, an attorney other than Malo addressed appellant at appellee's request. He returned the abstract and stated that appellee would like to lease the land for 1922 for the usual grain rental. Subsequently, on October 19, 1921, appellant tendered performance of the contract of sale on its part. The tender was refused by appellee, and this suit for the specific performance of the contract followed. Still later, on December 17, 1920, following correspondence, appellee, two of his sons, Malo, Frazier, and Sam A. Brown met at the bank of the last-named, at Cissna Park. Frazier produced a formal contract signed by appellant's president in its behalf, and at this meeting it was also signed by appellee. The contract, after reciting the possession by | appellant of the land in question, appellant's belief that the title thereto is good and mer- [1] Knapp, the appellee, at the time he chantable, the purchase of the land by ap- purchased the land in question, had lived pellee upon the terms set forth in the receipt upon an adjoining farm more than 20 years. of August 25, 1920, except that he should He owned contiguous lands to the east, south, pay all taxes subsequent to 1920, the exami- and west. At times he had threshed and nation of the abstract by appellee's attor- performed other work on the land, and had ney, and the advisability, in his judgment, cultivated part of it as a tenant. He opened before appellee complete the purchase, of ob- negeotiations for its purchase by his letter taining at appellant's expense a decree from of July 12, 1920, offered $305 per acre by his the circuit court of Iroquois county remov- letter of July 16, went to Peoria with his ing certain objections which he made to the son on August 13 and offered $330 per acre title, provides: (1) That appellant "will em- for the whole, or $335 per acre for 120 acres ploy the attorney of the party of the second of the tract, and finally, on August 25, purpart, to wit, Mr. Stephen C. Malo, of Wat- chased the land for $350 per acre, the origseka, Ill., to file a bill quieting said title as inal price asked by appellant. The purchase to the objections thereto raised by him, was not concluded hastily. More than 6 which it understands will make the title to weeks elapsed from the time appellee ansaid premises, as shown by said abstract, swered the advertisement offering the land acceptable to said party of the second part"; | for sale until he made the initial deposit of (2) that "when the said decree is rendered" $1,000. It is extremely doubtful whether final payment will be made by appellee in any person possessed greater knowledge or accordance with the terms agreed upon; and information concerning the land, the char(3) that appellee shall enter into possession acter and quality of its soil, the uses to on March 1, 1921, and farm the land as the which it could be put, and its value, than tenant of appellant; that the tenancy shall appellee. His desire to purchase may have exist "only until such time as such decree been due in large measure to his long resiquieting the title shall have been rendered" | dence across the highway from the land, his intimate knowledge of it and his ownership, "P. S.-Will also kindly ask you if you would make the loan for 6 per cent. even, without commission, the way you promised me at first." president of the bank at Cissna Park, with reference to the contract. He testified that Brown read those parts of the contract to him which stated the purchase price, the earnest money paid, the terms of payment, and the advisability of obtaining a decree to remove his attorney's objections to the title. He further testified that he understood the contract provided that he should take possession on March 1, 1921, that the sale should be consummated upon the entry of the decree, and that, pending the decree, the tenancy should be created. Hence every material part of the contract was either read to or understood by him. Brown testified that pursuant to appellee's request he first read the entire contract to him and then explained it. Moreover, at the meeting at which appellee signed the contract there were also present Malo, his attorney, and two of his sons. It seems incredible that he did not know or understand the contents of the contract. [4] Appellee testified that at the meeting at the bank on December 17, 1920, Frazier, appellant's trust officer, threatened to sue him for damages if he did not sign the contract. He is corroborated in this respect by his two sons. Brown, the banker whom appel lee consulted, has no recollection of any such threat, and Frazier denies making it. During the meeting, appellee testified all retired from the room except Brown and himself, that Brown read parts of the contract, that then they talked about it, and that later he signed it. Appellee acted deliberately, for he sought and received advice concerning the contract. At the meeting there were present with him Brown, Malo, and his two sons. Frazier represented the appellant. Under such circumstances he scarcely acted under duress. He entered into possession of the land pursuant to the contract. In none of his letters is there any reference to a threat, and he was not induced to sign the contract by any religious scruple against litigation, for he testified that his church did not forbid it. [5] Finally, it is contended that, since the decree entered in the suit to quiet title is based upon constructive service, it is not final, and therefore appellee cannot be compelled to accept the title based upon such a decree. The contract recites that appellant is advised and believes that the title to the land is good and merchantable, but that appellec's attorney deemed it best, before appellee should complete the purchase, that a decree be obtained removing certain objections which the attorney had raised to the title. The contract then provides that appellant will employ appellee's attorney, Malo, "to file a bill quieting said title as to the objections thereto raised by him, which it understands will make the title to said premises, as shown by said abstract, acceptable [3] Appellee consulted Sam A. Brown, to said party of the second part," and that, But this postscript is the language of inquiry to, rather than of an obligation on the part of, the addressee. Obviously, if there had been an understanding or agreement that appellant would make the loan, some mention would have been made of it in appellant's letters, and appellee would scarcely have requested postponements of the consummation of the sale in order to negotiate a loan. We are convinced that appellee did not enter into the contract to purchase the land in reliance upon any promise of appellant to lend him the money necessary to consummate the purchase. (145 N.E.) leases, one dated January 22, 1872, and the other October 7, 1854, both of mortgages, were not properly attested; (3) that the inventory of the estate of James Davis, deceased, filed August 16, 1880, was neither approved nor recorded, and that the description of the land is incomplete because the township and range were omitted; (4) that the identity of Wesley Davis with James W. Davis, of John Davis with John T. Davis, and of Edward Davis with Edward A. Davis, should be established; (5) that an affidavit of heirship of Zilla Davis, who died June 8, 1880, fails to state that her debts were paid; (6) that the deed from John Chamberlain and wife to Mary Snyder, dated October 28, 1864, clouds title to a part of the land; and (7) that proof should be recorded that Irvin W. Baker, and Elizabeth, his wife, mortgagors in the mortgage to the Ætna Life Insurance Company, dated January 6, 1886, and Jacob Luebchow, and Sophia, his wife, grantors in the trust deed to Isaac M. Hamilton, trustee, dated February 21, 1896, both released, never claimed any interest in parts of the land. "when the said decree is rendered, then the party of the second part agrees to complete and make final payment for the premises in accordance with the conditions above set forth, the cash payment of one-third of the remainder of the consideration to be then made, and the remainder to be secured by notes and mortgages as above set forth, all with 6 per cent. interest from March 1, 1921." The relation of landlord and tenant, temporarily created by the contract, it is expressly provided, shall exist "only until such time as such decree quieting the title shall have been rendered and the completion of the sale consummated in accordance with the conditions above set forth." Appellee testified that he knew when he signed the contract that it required him to complete the purchase upon the entry of the decree and that his tenancy would cease at that time. He also testified that he understood these provisions. He entered into them understandingly, and they are binding upon him. [6, 7] The contract, by implication if not expressly, requires appellant to convey to appellee a marketable title to the land. Com- [8] The deed from the trustees of the Illiplaint is made that the affidavit of unknown nois Central Railroad Company was executed owners filed in the suit to quiet title is de- more than 50 years ago. Possession of the fective, and that instead of two affidavits, land was taken by James Davis, the grantee, one of unknown owners and the other of non- pursuant to the deed, and held by him and residents, only one, purporting to answer the his heirs until the latter conveyed the land purposes of both, was filed. It is stated in to Cyrus N. Roberts, appellant's testator. the affidavit that the unknown heirs and dev- The two mortgages, even if defectively reisees of certain deceased persons "are sev- leased, one on October 7, 1854, and the other erally persons who are interested in the on January 22, 1872, have been long since above entitled cause whose names are un- barred by the statute of limitations. James known," etc. To say that the unknown heirs Davis died in 1880, the land was inventoried, of a deceased person are unknown, or that and the abstract shows that all claims the names of his unknown heirs are un- against his estate were fully paid. While known, is without meaning, for, notwith- in the legal description of the land the townstanding the statement, some or all of the ship and range were omitted, it does not apdecedent's heirs may be known. The affida- pear that the county was not stated. The vit did not state as a fact that the deceased proceedings to administer the estate of James persons named left unknown heirs or dev- Davis show that he left surviving, besides isees. It was ineffective to make unknown his widow and daughter, his sons, John, Edpersons parties to the suit. Moreover, the ward, and Wesley Davis. The guardian's peChancery Act (Smith-Hurd Rev. St. 1923, c. tition to sell real estate shows that the same 22) contemplates the filing of two affidavits, James Davis left his sons, John T., Edward, one under section 7, to authorize the suit and James W. Davis, surviving him, and the against persons whose names are unknown, affidavit of John T. Davis, recorded, October by the name and description of unknown 4, 1881, is to the same effect. The warranty owners or unknown heirs or devisees of any deed recorded March 25, 1882, shows that deceased person, and another under section John T. and Edward A. Davis are two of the 12, to warrant notice to parties defendant by heirs of the same James Davis, deceased. publication. Wenner v. Thornton, 98 Ill. 156. Zilla Davis died June 8, 1880-over 40 years A consideration of the objections which ago and all claims against her estate are were raised to the title by appellee's attor-barred. John Chamberlain and Orro L. ney is therefore necessary. If those which Chamberlain, his wife, the grantors, and the suit to quiet title sought to remove were without merit, that suit need not have been brought. The objections, excluding those shown by the abstract continuation to have been removed by means other than the suit, are: (1) That the deed by the trustees of the Illinois Central Railroad Company, dated October 25, 1867, was not acknowledged in their trust capacity; (2) that marginal re Mary Snyder, the grantee, in the warranty deed dated and recorded October 29, 1864, Irvin W. Baker and Elizabeth Baker, his wife, the mortgagors in the mortgage to the Ætna Life Insurance Company, dated January 6, 1886, and Jacob Luebchow and Sophia Luebchow, his wife, the grantors in the trust deed to Isaac M. Hamilton, dated February 21, 1896, are all strangers to the title. A pur |