Hamilton v. Rook

• Citation: 1871 WL 8342,62 Ill. 139
• Parties: JOHN HAMILTONv.THOMAS ROOK.
• Decision Date: 30 September 1871
• Court: Supreme Court of Illinois

62 Ill. 139

1871 WL 8342 (Ill.)

JOHN HAMILTON

v.THOMAS ROOK.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Bureau County; the Hon. E. S. LELAND, Judge, presiding.

The facts are sufficiently stated in the opinion of the court.

Mr. S. M. KNOX, for the appellant.

Mr. J. I. TAYLOR and Mr. THOMAS J. HENDERSON, for the appellee.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

In December, 1857, one Bubach sold to the complainant, Hamilton, a tract of land consisting of three lots of eighty acres each and a lot of two acres. In 1860, Hamilton reconveyed to Bubach two of the lots, containing one hundred and sixty acres. Bubach swears that it was understood, at the time, that the deed also included the lot of two acres. Hamilton denies this in his testimony. In 1866, one Britt went to Hamilton to buy this two-acre lot, and, according to the testimony of both Hamilton and Britt, made a verbal contract of purchase--Hamilton telling him he could go on and build his house, and Britt agreeing to pay in the following March. The price agreed on was $40, which Britt testifies Hamilton was to take in rails. Some time in the winter, after making this contract, Britt swears he called on Hamilton again, having, in the meantime, built his house, and told him the rails were ready, and asked for a deed. Hamilton, as Britt testifies, then told him the title was in Bubach, and that he must go to him for a deed. Britt went to Bubach, who gave him a bond for a deed on payment of $45. Britt subsequently sold his interest to Garver, and Garver sold to Rook, the appellee herein. Hamilton, in 1870, filed a bill against Rook, alleging that he was about to remove the house from said two acres, and praying for an injunction. The appellee answered, and filed a cross bill setting up Britt's bond from Bubach and the assignments to himself, and alleging a mistake in the reconveyance from Hamilton to Bubach. He afterward filed an amended cross bill setting up the verbal contract between Hamilton and Britt, alleging the facts above stated as part performance, and praying for relief under this contract if denied on the other ground. The court held the mistake in the reconveyance not sufficiently proven, but granted the relief asked under the amended cross bill, requiring Hamilton to convey on the payment of the $40 and interest.

Although the evidence in this case is not of the clearest character, we think the court did...