Thomas v. Thomas Coultas Et Ux.
| Decision Date | 31 January 1875 |
| Citation | 76 Ill. 493,1875 WL 8231 |
| Parties | JOHN E. THOMASv.THOMAS COULTAS et ux. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.
Messrs. GAPEN & EWING, for the appellant.
Mr. JOHN E. POLLOCK, and Messrs. BLOOMFIELD & LOOMIS, for the appellees.
It appears that Mrs. Coultas was the owner of a house and lot in the city of Bloomington, and appellant owner of a farm in the county, and he and her husband, Thomas Coultas, agreed to exchange the same, Mrs. Coultas to give, in addition to the house and lot, a half section of land in Butler county, in the State of Kansas. The farm was subject to a mortgage of $2500, which appellees were to pay and discharge, and to pay appellant $700, as the difference between the house and lot and Kansas lands, and the farm. The house and lot was conveyed to appellant, and a bond was given for the conveyance of the Kansas lands by the 1st of September, 1873, and appellant was to pay a mortgage of $1200 on the house, and Mrs. Coultas was to pay $3200 to appellant if she should be unable to convey the Kansas lands with good title.
The bill alleges that appellant was the owner of but five-sixths of the farm, and that he knew the fact, and that he fraudulently represented the title to the same as being perfect, and fraudulently represented that it was free from incumbrance except the $2500 mortgage, when he in fact knew that there were judgments against him to the amount of about $1300, which were liens on the farm. That conveyances were made, and appellant was let into possession of the house and lot, and appellant's tenant attorned to appellee, but it is charged that, being a brother of appellant, he was under his control.
Appellees gave the trust deed on the farm to secure the $700 they were to pay in money, and also a trust deed for $3200, to become binding in case title could not be conveyed to the Kansas lands by the first of September following, as agreed by appellees. This, with the contract, was left with one Spaulding, to carry the agreement into effect. They also made another trust deed of $3500 on the farm, as is claimed, to raise the money to pay off the $2500 and the $700 mortgage. The application was made to Weed, who held the $2500 mortgage, but the loan was not consummated. Some time in July, 1873, Howell, who was an heir to a former owner of the land, and owned an undivided one-sixth of the farm, came of age, and held his interest at $1300, thus making the incumbrances on the farm somewhere near $2600 more than the mortgage which appellees had agreed to pay. The original bill was at once filed, signed by Mrs. Coultas, and sworn to by her husband. Afterwards, appellees' counsel, in September, after the bill was filed, were allowed, for the first time after their execution, to see the contract and trust deed given to secure the Kansas land, and thereupon they applied to the court for leave on affidavit to file an amended bill, and were relieved from certain specified allegations made in the original bill.
The court, on its own motion, ordered that the following questions be submitted to a jury for decision: First. Were complainants to pay any money to defendant over and above the mortgage? Second. Did Thomas Coultas know of the interest held by Howell as heir, when the contract was made? Third. Did Mrs. Coultas know of that fact when the contract was entered into by the parties? The jury, after hearing the evidence, answered each interrogatory in the negative.
It is first objected, that the court below erred in relieving complainants from the allegations of their bill. The order, of course, must be construed as being no broader than the application, which only asked to be relieved from those which related to a statement of the terms of the contract.
Whilst in applications for injunctions on sworn bills, or in fact in any case where a bill is sworn to, courts always act with great caution in permitting the complainant to amend and make repugnant allegations, and to prove the same, and have relief thereon, yet such a practice is always allowed, to prevent the failure of justice, where a proper case is shown. Where it is manifest the complainant is honestly mistaken as to facts charged in his bill, it may be allowed; and more readily where a bill is sworn to by an agent or attorney, than where it is sworn to by the complainant. It is not to be expected that a person, months after a contract is reduced to writing, can give accurately and in detail all of the terms of an agreement. And where the inspection of an agreement can only be had under a rule of court...
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