Baker v. Rockabrand

• Decision Date: 05 October 1886
• Citation: 118 Ill. 365,8 N.E. 456
• Parties: BAKER v. ROCKABRAND.
• Court: Illinois Supreme Court

118 Ill. 365

8 N.E. 456

BAKER

v.ROCKABRAND.

Supreme Court of Illinois.

October 5, 1886.

Appeal from city court, Aurora.

M. O. Southworth

, for appellant.

A. C. Little and S. A. Alshuler, for appellee.

SHOPE, J.

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 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 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 possession under a written lease from appellee expiring March 1, 1886. Carr refused to agree to surrender March 1, 1884, and insisted upon holding the full term of his lease as he claimed it to be, unless paid $250 for a surrender of it. Appellant returned to Aurora about the first day of October, and upon his return went to appellee, told him of the claim of Carr, and demanded a rescission of the contract; and, upon appellee refusing to do so, on the third day of October caused said Hem to execute and acknowledge a deed reconveying said land, and the same, properly acknowledged, was on that day tendered to appellee, and a reconveyance of the Aurora property demanded. Appellee refused to accept the deed tendered, or to reconvey. No objection is made that the deed tendered was not in every was sufficient to reinvest appellee with the title to the Missouri land. A notice to quit was served on the tenant, Carr, who refused to surrender March 1, 1884, unless paid for his unexpired term of two years; and afterwards, on the sixth day of March, the deed from Hem to appellee was again tendered, and a reconveyance of the Aurora tract of land demanded. Appellee again refused to accept the deed, or reconvey. After the tender of the deed to appellee, and the attempt by appellant to rescind, he refused to pay rent to appellee, and forcible detainer proceedings were brought by appellee to recover possession of the land near Aurora, and which suits were pending on appeal in the county court of Kane county when this bill was filed.

Upon looking into the evidence, we find that the only point really in controversy is between appellee and his tenant, Carr. Appellee nowhere denies the representations alleged, but insists that they were true, and that, in fact, the lease of Carr did expire March 1, 1884, and his right to the Missouri land then terminated.

This court has frequently said that when the trial court saw and heard the witnesses, with the opportunity of observing them while testifying, this court would attach much weight to the finding of the trial court, and would not reverse upon mere questions of fact, unless such finding was palpably erroneous, and we are not disposed to depart from that rule. But in cases where, as in the one at bar, the evidence is in the form of depositions, the reason of the rule fails. This court, having the same facility for determining the truth or falsity of the testimony, must determine from the record the questions of fact, as shall appear just and right.

The witnesses Carr and his wife each testify that they went into occupancy of the Missouri land under a lease running from March 1, 1881, to March 1, 1882; that they held over under that lease until some time in December, 1882, when appellee came to their house, on the land, and an agreement was entered into between Carr and appellee by which there was a re-leasing to Carr, the term to end March 1, 1886, at the same annual rental; that after the agreement was made they were about to prepare a new lease, when appellee suggested that it would do just as well to change the date of the old lease, and make it terminate March 1, 1886; that thereupon the figures in the old lease were changed by Carr, in appellee's presence, and at his suggestion, and the lease thus changed delivered to Carr, and kept by him. These two witnesses are not impeached or contradicted by any one except by the appellee, who denies in toto the extension of the lease after March 1, 1884. Conceding that Carr and his wife and appellee are interested witnesses, there are two to one testifying to...