majority">Mr. Chief Justice Lawrence

delivered the opinion of the Court:

The land was sold in 1855, and the last payment fell due in January, 1858. The contract contained a clause authorizing the vendor to declare a forfeiture in the event of non-payment. It was assigned by the vendee to Julian and Radcliffe, and Julian assigned to Whitaker, the complainant. Radcliffe and Julian also united in a mortgage to complainant. This was in 1857. The last payment not being made, the vendor sent one of his sons to the house of Radcliffe, near the land, to demand payment and tender a deed. He saw Radcliffe’s wife, and told her the deed was ready, but his wife said Radcliffe had left the country, as appears from the evidence to have been the fact. Julian also had left, and the vendor, so far as appears, knew nothing of the interest of Whitaker. There was a person on the land who had been tenant of Radcliffe, and he attorned to the vendor. In March of the same year (1858), the vendor re-sold the land to Evans, who went into possession, and continued in possession until the commencement of this suit, making, in the meantime, valuable improvements. The vendor died in 1863, and in 1866 Whitaker filed this bill against his heirs and Evans, asking a conveyance, and, failing in that, praying for a return of the purchase money paid to the vendor on the first sale, or of so much thereof as would belong to Whitaker.

The mere laches of Whitaker in asserting his rights under the bond, being a delay of eight years from the maturing of the last payment until the commencement of this suit, would be a sufficient reason for not granting a specific performance. Ho satisfactory excuse is shown for the delay. He lived all the time within" a few miles of the land, and necessarily knew that Evans had bought and was improving it.

But apart from this, by the terms of the bond, the vendor had the power of declaring a forfeiture, and this he did when he re-sold the land to Evans. It is said he should have tendered a deed before declaring a forfeiture. The proof shows that he was ready to do so, but both Julian and Badcliffe had left the country, and Whitaker, who probably held the bond, gave no indication that he claimed any interest in the land. The preceding payment had been made by Julian and Badcliffe, and they were the only persons from whom the vendor had reason to expect payment of the instalment then due. We do not decide whether, by the terms of the contract, the vendor was under obligation to tender a deed before declaring the contract forfeited, but only say that if he was so, he did all that was in his power to that end, and is chargeable with no fault.

It is unnecessary to decide whether the statute of limitations, which is set up in the answer, would be a bar to the recovery of the money paid, since, under the decision of this court in the case of Wheeler v. Mather, 56 Ill. 241, there could be no recovery, independently of the question of time. The writer of this opinion did not concur in that decision, but it is now the rule of the court, and is applicable to the present case. When the record in this case was brought here, that decision had not been announced. The counsel for plaintiff in error endeavors to point out a distinction between that case and the one at bar, but we can see none, in principle.

The decree of the circuit court must be affirmed.

Decree affirmed.

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