Elder v. Sabin
| Decision Date | 30 September 1872 |
| Citation | 1872 WL 8518,66 Ill. 126 |
| Parties | MARY ELDER et al.v.WILLIAM SABIN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Court of Common Pleas of the city of Aurora; the Hon. RICHARD G. MONTONY, Judge, presiding.
The material facts of the case are stated in the opinion. After the hearing of the cause the court below dissolved the temporary injunction granted. Upon suggestion of damages for attorney's fees and expenses, the court assessed the damages at $200 attorney's fees, and $36 expenses.
Mr. S. W. BROWN, for the appellants.
Messrs. WHEATON, SMITH & MCDOLE, for the appellees.
This was a suit in equity, brought by appellants in the court of common pleas of the city of Aurora, against appellee, for the purpose of rescinding the purchase of a house and lot in that city. It is alleged that Sabin, at the time of the sale, represented that there were in existence papers guaranteeing the right to use water from a well on an adjoining lot to that sold to appellants, and that he would get the papers and place them in the hands of appellants. And that he further represented the papers provided that whenever the owner of the lot sold to them should sink a well on the lot, the former owner of both lots would furnish the stone necessary to wall and complete such well. The bill charges that there was no such contract or papers, and that Sabin knew they did not exist, or that he fraudulently made the representation without any knowledge on the subject; that the stone for the well had been furnished to Sabin, which filled and terminated any contract that may have existed in relation thereto.
From an examination of the evidence we think it sustains the truth of the allegations. And had the contract remained unexecuted, or had this proceeding been instituted in a reasonable time, the complainants would have been entitled to the relief asked in the bill.
It is true, that the notes and mortgage given to secure the deferred payments on the purchase, were transferred before they were due, but all of the evidence considered in relation to the assignment, we think that it was not for value, and only to prevent a defense. We shall therefore consider the case as though Sabin was still the holder of these securities.
It appears that about the first of October, 1869, complainants and Sabin met at the office of Town and closed the trade, complainants paying $500 on the purchase, with the understanding that when they should in a few days pay the balance of a cash payment of two thousand dollars to the elder Town, and give their notes for $2100, secured by mortgage on the premises, then Town was to deliver to them the deed for the property. A week or ten days afterwards the remaining $1500 of the cash payment was made to Town, the notes and mortgage delivered, and complainants received the deed for the house and lot, and went into possession. Subsequently they ceased to occupy it themselves, and rented it to tenants, who occupied it until about May, 1870, when the tenants, being refused the privilege of getting water on the adjoining lot, refused to pay rent. Complainants thereupon offered to rescind the contract upon receiving back the $2000 paid on the property, and their notes...
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...Chicago Title & Trust Co. v. De Lesaux, 336 Ill. 522, 168 N.E. 640, the temporary injunction must have been wrongfully issued, Elder v. Sabin, 66 Ill. 126; Marks v. Columbia Yacht Club, 219 Ill. 417, 76 N.E. 582, and it must be dissolved before the cause is heard on the merits for final jud......
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...Coultas, 33 Ill. 188; Farni v. Tesson, 1 Black. 309. Damages accruing after dissolution of injunction are not recoverable: Elder et al. v. Sabin et al. 66 Ill. 126; Jevne et al. v. Osgood et al. 57 Ill. 340; Bullock v. Ferguson, 30 Ala. 227; Ferguson et al. v. Babers, Adm'r, 24 Ala. 402; Mi......
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