Fisher v. Dillon

• Decision Date: 31 January 1872
• Citation: 1872 WL 8054,62 Ill. 379
• Parties: JESSE H. FISHERv.ALLEN H. DILLON.
• Court: Illinois Supreme Court

62 Ill. 379

1872 WL 8054 (Ill.)

JESSE H. FISHER

v.ALLEN H. DILLON.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean County; the Hon. S. L. RICHMOND, Judge, presiding.

Messrs. HATCH & SLADE, for the appellant.

Messrs. WELDON & BENJAMIN, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

In the month of November, 1865, appellee, by contract in writing, purchased of one Anderson the south-west quarter of section thirty-six, township twenty-two north, range one west of the third principal meridian, at forty dollars per acre. He paid five hundred dollars on the purchase and gave his notes, due on time, for the balance. By the terms of the agreement appellee was to forfeit the five hundred dollars paid if he should not pay the first note when it matured, and the other notes given on deferred payments were to become due by reason of the default in such first payment.

Subsequently, and before the first note fell due, appellee found he would be unable to meet it promptly, and applied to different persons to borrow the money, but failing to succeed he applied to and urged appellant to advance one half of the purchase money and become an equal owner of the property, and he accepted the proposition and thus became a purchaser, and the contract was changed so as to show that appellant and appellee were purchasers. The note first falling due was paid by the parties, and the other two notes were taken up and their joint notes substituted for them, and a mortgage was given on the land to secure their payment. There was a condition that if the first of these notes was not paid when due, the others should then become due. Anderson, at the same time, executed to them a deed for the land. They, at the same time, divided one hundred and twenty acres of the land, appellee taking the south half and appellant the north, and released to each other the portion each had received on the division.

The parties paid the first note at maturity. But appellant refused to pay half of the second note, being the last payment, but deducted from his half eight hundred dollars, and paid the balance of his half. Thereupon Anderson foreclosed the mortgage, and appellant subsequently redeemed, paying the eight hundred dollars unpaid on appellant's half of the note. In the meantime one forty acres of the land had been laid off in town lots before the division was made, and the lots were divided at the same time that the one hundred and twenty acres were.

Prior to the foreclosure, in February, 1868, appellant filed a bill in chancery, alleging that appellee had falsely represented that he had paid one Merriam sixteen hundred dollars for an interest he had in the land, and alleging that the south half of the one hundred and twenty acres was worth more than the north half. After redeeming, appellee filed a cross bill setting up the sale and redemption. On the hearing the court found that there was due from appellant eight hundred dollars, with six per cent from the time the last note fell due, amounting to eight hundred and eighty-five dollars and eighty-seven cents, and dismissed the original bill. Appellant has brought the case to this court by appeal, and asks a reversal.

Appellant alleges that he was not acquainted with the land at the time the division was made, and had relied upon the representations of appellee, and that the portion he got was of less value than the half appellee received. It is no doubt true that the parties did not go over the land with a view to its being divided. But the preponderance of the evidence shows that when considering whether appellant would purchase he was upon the land for the purpose of seeing it, and must have seen it so as to become satisfied with its...