Windett v. Hurlbut

• Decision Date: 14 November 1885
• Citation: 115 Ill. 403,5 N.E. 589
• Parties: WINDETT v. HURLBUT.
• Court: Illinois Supreme Court

115 Ill. 403

5 N.E. 589

WINDETT

v.HURLBUT.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from First district. Rehearing denied March 19, 1886. Stay-order allowed December 2, 1885.

Arthur W. Windett and Thomas Shirley, for appellant.

Geo. F. Westover, for appellee.

SCHOLFIELD, J.

This was forcible entry and detainer, by appellee against appellant, under the sixth clause of section 2 of chapter 57, Rev. St. 1874, for the possession of certain real estate which appellee claimed to have purchased at a sale by a trustee pursuant to the power in a deed of trust.

Appellee gave in evidence, upon the trial in the superior court, among other things, the deed of trust, and the deed by the trustee to himself. Appellant, in defense, offered parol evidence to prove that the trustee in fact made no sale; that appellee had paid nothing for the property; and that it was worth $30,000, and constituted appellant's homestead; but the court held the evidence inadmissible, and refused to hear it. And this is the first and principal error for which it is contended the judgment below should be reversed. Very clearly, the ruling was right. This is not a suit in equity to set aside the trustee's deed, but an action at law in which legal, as contradistinguished from equitable, principles must control.

Conceding, as contended by counsel for appellant, that it is the sale, and not the conveyance of title, which authorizes the recovery, still the deed is conclusive evidence of the sale. If the deed is not fraudulent and void, but conveys the title to the property, there must have been a sale; and hence it comes to the question whether the deed in an action at law can be contradicted and proved to have been executed in violation of law, and sale to be fraudulent and void. The rule is familiar, whenever the distinction between law and equity is preserved, that in a trial at law fraud in the execution of a deed may be given in evidence; as that, through the misreading or the substitution of one paper for another, or by other device and trickery, he was induced to seal it, believing at the time that he was sealing something else. And it may also be proved that what purports to be a deed is in truth not a deed, but a forged instrument; but it cannot be proved that the transactions which preceded and induced the execution of the deed were fraudulent. When a party knowingly and voluntarily signs a deed, although he do so in violation of his duty and of the law, or be induced thereto by the fraudulent contrivances of others, yet, if it be such upon its face as will convey title, it can only be impeached and set aside, and parol evidence be received for that purpose, in a court of equity. Kerr, Fraud & M. (Bump's Ed.) ...