113 Ill. 425 (Ill. 1885), Burnham v. Kidwell

Citation:113 Ill. 425
Opinion Judge:Mr. CHIEF JUSTICE SCHOLFIELD.
Party Name:CLARA E. BURNHAM et al. v. JOHN W. KIDWELL
Attorney:Mr. HAMILTON SPENCER, and Mr. W. E. HUGHES, for the appellants: Messrs. KERRICK, LUCAS & SPENCER, for the appellee:
Case Date:March 30, 1885
Court:Supreme Court of Illinois
 
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Page 425

113 Ill. 425 (Ill. 1885)

CLARA E. BURNHAM et al.

v.

JOHN W. KIDWELL

Supreme Court of Illinois, Springfield

March 30, 1885

Page 426

[Syllabus Material]

Page 427

APPEAL from the Circuit Court of McLean county; the Hon. FRANKLIN BLADES, Judge, presiding.

This was an action of ejectment, brought by John W. Kidwell, an idiot, as plaintiff, by J. M. Crigles, his conservator, against Mary A. and Clara E. Burnham, and their tenant, for one-half of the premises in dispute. On a trial by the court, without a jury, the plaintiff obtained judgment for the recovery of the premises, and the defendants perfected this appeal.

Judgment reversed.

Mr. HAMILTON SPENCER, and Mr. W. E. HUGHES, for the appellants:

The statute makes contracts of an idiot, after the finding of a jury, void; but if made before the finding, they are only voidable. The statute does not, by express terms, include deeds and conveyances in its provisions, but deeds and conveyances are contracts, after all; and outside of the statute, the authorities are overwhelming that the deed of a person of unsound mind, if made before inquest found, is not void, but is only voidable. Crouse v. Coleman, 19 Ind. 30; Breckenridge v. Ormsby, 1 J. J. Marsh. 236; Summers v. Pumphrey, 24 Ind. 231; Kates v. Woodson, 2 Dana 452; Allis v. Billings, 6 Metc. 415; Hovey v. Hobson, 53 Maine 451; Arnold v. Richmond Iron Works, 1 Gray 434; Ingraham v. Baldwin, 9 N.Y. (5 Seld.) 45; Cook v. Parker, 5 Phil. (Pa.) 265.

Neither the grantor nor his conservator can disaffirm the contract in any court without first refunding the purchase money, and expenditures for taxes, etc. Jennings v. Gage, 13 Ill. 610; Tisdale v. Buckmore, 33 Me. 461; Knocke v. Rucks, 34 Miss. 105; Evans v. Gale, 17 N.H. 573; Otter v. Stuart, 30 Barb. 20.

A party can not affirm a contract in part and rescind it as to the residue. If he rescinds, he must do so in toto,--he must put the opposite party in as good condition as he was before the sale was made. Wolf v. Dietzsch, 75 Ill. 205; Buchenau v. Horney, 12 id. 338.

A party can not rescind a contract of sale and at the same time retain the consideration he has received. He must put the other party in as good condition as before the sale, by a return of the property purchased. Smith v. Brittenham, 98 Ill. 188; Hamilton v. Manufacturing Co. 54 id. 370; Buchenau v. Horney, 12 id. 338.

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