8 N.E. 456 (Ill. 1886), Baker v. Rockabrand

Citation:8 N.E. 456, 118 Ill. 365
Opinion Judge:SHOPE, J.
Attorney:[118 Ill. 366] M. O. Southworth, for appellant. [118 Ill. 367] A. C. Little and S. A. Alshuler, for appellee.
Case Date:October 05, 1886
Court:Supreme Court of Illinois

Page 456

8 N.E. 456 (Ill. 1886)

118 Ill. 365




Supreme Court of Illinois

October 5, 1886

Appeal from city court, Aurora.

Page 457

[118 Ill. 366] M. O. Southworth, for appellant.

[118 Ill. 367] A. C. Little and S. A. Alshuler, for appellee.


This was a bill in chancery, filed in the city court of the city of Aurora by appellant, to rescind an exchange of lands, and compel appellee to reconvey the tract conveyed to him by appellant, and to enjoin certain forcible entry and detainer suits pending in the county court of Kane county, brought by appellee to recover possession of such tract of land. Upon hearing, the court dissolved the injunction, and dismissed the bill, from which decree this appeal is prosecuted.

It appears that appellant, claiming to be the owner of a tract of land lying near the city of Aurora, in this state, entered into negotiations with appellee, who was the owner of an [118 Ill. 368] 80-acre tract in Macon county, Missouri, for an exchange of properties. The legal title of appellant's land was in one Hem, who held it by way of mortgage, and who, it appears, was willing to convey at appellant's request. Upon appellant's tract was a mortgage to secure $700, while appellee's land was incumbered by a mortgage for $600. Appellant was in possession of the Aurora land, and the Missouri tract was occupied by one Carr, as the tenant of appellee. It was also understood that appellant made the trade with the expectation of removing upon the Missouri land with his family the first of March following, appellee conceding that he represented that Carr's right, as his lessee, would then terminate; and, as appellant could not get possession until the first day of March, 1884, it was agreed that he should occupy the Aurora premises until that date, at a rental of $8 per month after the first day of October then next following. No value seems to have been put upon either tract, but the trade was consummated, appellee assuming the $700 mortgage on the property he received, and appellant assuming the $600 mortgage on the Missouri land; and on the fourteenth day of September, 1883, deeds were exchanged, conveying to appellant the Missouri land, and to appellee the tract near Aurora. It is abundantly proved, if it was not substantially conceded, that appellee represented during the negotiations, and again on the day of the acknowledgment and delivery of the deeds, that Carr's lease to the Missouri land would expire March 1st following, and that appellant would be entitled to possession on that day. The attention of appellee was specifically called by the scrivener who drew the deeds to the question of when the lease to Carr would expire, and when appellant could

Page 458

get possession, and the representations were repeated, and appellant assumed that he could get and would be entitled to go into possession of the land conveyed to him on the first day of March, 1884, and that Carr's lease then expired. The only question of fact really controverted by appellee in his answer [118 Ill. 369] and at the hearing was whether Carr's lease did expire that day.

Immediately upon receiving his deed, appellant went to Missouri to see his purchase, found Carr in...

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