#### The Chicago and Eastern Illinois Railroad Company v. Melinda Hay et al.

Filed at Ottawa January 25, 1887.

Specific performance—as against assignee of the parly malting the contract. The holder of a contract for a conveyance of land made a contract with a railway company, whereby he agreed to convey to the latter a right of way over the land, on conditions fully performed. He paid all the purchase money except $70, and then assigned .his contract of purchase to his wife, she paying nothing therefor, except the $70 to the vendor, and received a deed for the land. ' It appeared that the land outside of the right of way was worth more than the sum paid by the wife: Held, on bill by the railway company for a specific performance of the contract of the husband, that the wife stood in no better position than the husband would, in regard to the rights of the company.

Appeal from the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding.

Mr. William Armstrong, for the appellant.

Messrs. Doyle, Morris & Pierson, for the appellees.

Mr. Justice Sheldon

delivered the opinion of the Court:

This ease is essentially the same as the foregoing one of Chicago and Eastern Illinois Railroad Co. v. Daniel Hay et al., and requires the like decision in favor of the appellant. The present case" differs, in that it respects the railroad through the south half of the same south-east quarter of section 28, and in Melinda Hay being a party defendant, instead of Daniel Hay.

It is insisted, that Alexander D. Hay, who granted the right of way for the railroad through this quarter-section, never had any interest in this south half of the quarter. The proof shows that in the fall of 1870, when the railroad was graded *508through this land, one William David was the owner, by assignment, of the contract of sale by the Illinois Central Eailroad Company, of the south-west quarter of said quarter section. It is claimed by appellees, that David sold and assigned this contract to William S. Hay, but that by mistake the contract was assigned to Alexander D. Hay, and that the latter assigned the same to William S. Hay, who assigned the same to Melinda Hay, and that she obtained the deed for the same from the Illinois Central Eailroad Company. We are satisfied, from the evidence, that it was Alexander D. Hay who made the negotiation with David for the purchase of the land, and that the latter, on December 1, 1870, sold and assigned the said contract with the Illinois Central Eailroad Company, to said Alexander D. Hay, making a written assignment thereof to him on the back of the contract, no other person than the said Alexander D. being known or concerned in the transaction; and that afterwards, the said Alexander D. assigned his interest to his wife, Melinda Hay, she paying nothing therefor; that she paid the remaining one-quarter payment of $70 due on the contract, and received a deed for the south-west quarter of said quarter-section from the Illinois Central Eailroad Company, dated September 30, 1871. All the interest of Melinda Hay in the land, except what may be represented by the $70 payment, is derived under Alexander D. Hay, who granted the right of way, and she stands in no better position than he would in regard thereto. The remainder of the forty acres outside of the right of way is much more than sufficient to meet the $70 payment.

The decree will be reversed, and the cause remanded for further proceedings in conformity with the opinion in this and that in the foregoing named case.

Decree reversed.