ing thereon did not exceed in value the sum of $20, and is and was uninsurable; that Allen on May 1, 1900, paid $12.22 of taxes upon said premises, which amount is now due from Henn and his wife to Allen. The decree further finds that the amount paid by appellees to Allen is in excess of the value of the 290 acres; that Henn and his wife have paid to Allen the full value of the 290 acres; that the consideration for the exchange of property so made, and notes and mortgage given, has failed to the full extent of the amount specified in the notes; that there is nothing due upon said notes or mortgage to Allen, and that there is no equity in the original bill, but that the equity is with the cross complainants; and that it would be inequitable to require Henn and his wife to pay the notes, or any part of the same, to Allen. After making the order as to the payment of taxes specified in the statement preceding this opinion, the court decrees that the mortgage dated November 27, 1899, made by appellees upon the 290 acres, be set aside and vacated, and declared null and void, and that the notes secured thereby are null and void and of no effect whatever, and are therein so declared to be; and it is directed that the notes remain in the court as part of the files in the proceeding. After a careful examination of the evidence in this case, we are satisfied that the findings of the decree as above set forth are sustained by the evidence.

2. The certificate of evidence found in the record does not state that the evidence set forth in the certificate was all the evidence presented to and heard by the court upon the hearing below. The facts found by the decree, as above set forth, justified the court in entering the decree which it rendered. If there had been no certificate of evidence in the record, it would be presumed that the findings of the decree were warranted by the proofs heard by the court. But as the certificate of evidence does not purport to preserve all the evidence heard by the trial court, it must be presumed that there was sufficient evidence to warrant and sustain the findings. Brown v. Miner, 128 Ill. 148. 21 N. E. 223; Bank v. Baker, 161 Ill. 281, 43 N. E. 1074. In Jackson v. Sackett, 146 Ill. 646, 35 N. E. 234, we said (page 655, 146 Ill., page 236, 35 N. E.): "It is well settled that in proceedings in chancery it is incumbent upon the party seeking to sustain a decree in his favor to preserve the evidence upon which it is based, in the record, in some proper form. But there are various modes in which the evidence may be preserved in the record. * * Where evidence is taken orally in open court, it must be preserved by a certificate of evidence; but, where the decree recites the facts found by the court from the evidence, it will be presumed, in the absence of anything in the record showing the contrary, that the facts thus found were proved by competent evidence." In Allen v. Le Moyne,

*

*

*

102 Ill. 25, we said (page 27): "Since the adoption of the act allowing oral testimony to be heard on the trial of a cause in equity, it has been the constant practice to preserve the evidence by recitals in the decree, and

* the statements of the evidence in the decree can no more be questioned by the appellate court than can those of a bill of exceptions in a common law case. Where the facts are found by the court and recited in the decree, the finding cannot be reversed unless all the evidence heard on the trial is preserved in the record, and thus brought before the court. Where the evidence is not all preserved, it will be presumed that the evidence heard and not preserved was sufficient to authorize the finding." Groenendyke v. Coffeen, 109 Ill. 325; Hannas v. Hannas, 110 Ill. 53; Corbus v. Teed, 69 Ill. 205. Where the findings of fact made in the decree of the trial court are not contradicted by the evidence in the record, they must be held to be conclusive, so far as this court is concerned, and whether or not they are contradicted by the evidence cannot be determined by a reviewing court unless it appears that the record presents all the evidence heard by the chancellor in the court below. Cooley v. Scarlett, 38 Ill. 316, 87 Am. Dec. 298; Allen v. Le Moyne, 102 III. 25. Here, in the absence of a statement in the certificate that the latter contains all the evidence heard by the trial court, we are bound to presume that there was sufficient evidence to warrant and sustain the findings.

3. It is urged by counsel for appellant that the statements, alleged to have been made by the appellant to the appellees as to the value of the land were mere matters of opinion, and that fraudulent representations cannot be predicated upon such expressions of opinion. It is true that a party trying to effect a sale of his own property has a right to puff it and exalt its value, and that false representations as to its cost and value, where no relation of confidence or trust exists between the vendor and vendee, will not be regarded as constituting a fraud, in legal contemplation, as such representations are looked upon as mere expressions of opinion about matters, which the other party can judge of for himself. Tuck v. Downing, 76 Ill. 71. But an examination of the findings of the decree, as above set forth, will show that the representations made by the appellant to the appellees were statements of fact, rather than expressions of opinion. It was a statement of fact that the land was first-class, high, dry, river-bottom land, and not subject to overflow. It was a statement of fact that the land was covered by valuable timber. It was a statement of fact that all the land, except 40 acres, was virgin forest, and that such 40 acres was in a high state of cultivation. As the decree finds that these statements of facts were false and fraudulent, they constituted such false representations as will be relieved against

4. It is claimed on the part of appellant that even though the agreement of July 22, 1899, may have been brought about by fraudulent representations, yet the surrender of the old notes and bond for a deed on November 27, 1899, and the execution of a deed of the 290 acres by Allen to Henn, and the execution of new notes and a mortgage upon the premises by Henn and his wife on that date, constituted an affirmance of the contract. It is contended that by reason of the new transaction thus made on November 27, 1899, the appellees are barred from any relief, upon the alleged ground that at that time they had ascertained and knew the actual condition of the premises, and the falsity of the representations, if there were any false representations. In the first place, the proof tends to show that a party who went with Henn to look at the premises, either through fraudulent design or mistake, pointed out to him other premises than those in question. Land which was of good quality was shown to him by such person, but the real land which appellant proposed to sell to him was not shown to him. Mrs. Henn never saw the land exhibited or the land sold. The evidence further shows that when Henn at a subsequent time went to the premises for the purpose of cutting timber, in order that he might by its sale realize money enough to pay his first note, about to fall due on January 1, 1900, the appellant interfered with his cutting of the timber, and threatened him with a forfeiture of the bond for a deed. The conduct of the appellant was such as to force the appellees into some new arrangement, such as that which they made on November 27, 1899, in order to save themselves from total loss. But the appellees here are not seeking a rescission of the contract. The original bill in this case was filed by the appellant for the purpose of foreclosing the mortgage executed by appellees. A defrauded buyer may, instead of rescinding a contract, stand by the bargain, even after he has discovered the fraud, and recover damages therefor, or recoup in damages if sued by the vendor. 8 Am. & Eng. Enc. Law (1st Ed.) p. 819; White v. Sutherland, 64 Ill. 181. "The affirmance of a contract by the vendee after discovery of the fraud merely extinguishes his right to rescind, while his other remedies remain unimpaired." Id. In this regard the case of White v. Sutherland, supra, is similar in its facts to the case at bar. In the Sutherland Case it appeared that a purchaser of land relied upon the fraudulent representations of the vendor in making the purchase, and made a partial payment of the purchase money, but, after he discovered the fraud, executed his notes for the balance, and a mortgage on the premises to secure the same; and it was there held that, while such acquiescence or affirmance of the contract on the part of the purchaser might operate to deprive him

on a bill to foreclose the mortgage, he had the clear right to recoup the damages occasioned thereby. It was also there held that it was not essential to such right of recoupment that he should have asserted it before paying any of the notes; that he might then have resisted the payment, but was not obliged to do so, and might delay until proceedings were commenced to foreclose, and then present his claim for damages. In cases of fraud upon the part of the vendor, the vendee, who alone has the right to claim a rescission, may remain silent and bring his action to recover damages for the fraud, or may rely on it by way of defense to the action of the vendor, although there has been full acceptance of the property, with knowledge of its defects. An affirmance of the contract by the vendee with such knowledge merely extinguishes his right to rescind the sale, but his other remedies remain unimpaired. White v. Sutherland, supra. In the case at bar the facts show that appellees had turned over to the appellant property and money to the amount of $2,200, while the 290 acres deeded to them were not worth more than $1,450. They had, therefore, paid in full for the 290 acres. When the bill to foreclose the mortgage to secure $2,900 more was filed against them, they set up the fact that such notes and mortgage were without consideration, and thereby claimed a recoupment in damages, or what, in substance, amounts to a recoupment in damages. Under the doctrine laid down in White v. Sutherland, supra, it was proper for them to delay until proceedings to foreclose were instituted, and then present the claim set up in their answer to the original bill and in their cross bill. If there was an affirmance of the contract, it only deprived appellees of the right to rescind, but did not abridge their right to recoup for the injury. Dillman v. Nadlehoffer, 119 Ill. 567, 7 N. E. 88.

We discover no error which would justify us in reversing the decree of the circuit court. Accordingly the judgment of the appellate court affirming that decree is affirmed. Judgment affirmed.

(197 Ill. 409)

PEOPLE ex rel. MISNER v. HANKER et al. (Supreme Court of Illinois. June 19, 1902.) QUO WARRANTO-TRUSTEES OF VILLAGE-LEGAL ORGANIZATION ACQUIESCENCE OF RELATOR PERFORMANCE OF MUNICIPAL FUNCTIONS.

Quo warranto on the relation of an inhabitant of a village to oust the trustees thereof on the ground that the same was never legally organized is properly refused where it appears that for more than 20 years relator has acquiesced in the organization and acts of the village, which has, without question, exercised municipal functions; making improvements, expending moneys, issuing bonds, etc.

Error to circuit court, Cumberland county; Frank K. Dunn, Judge.

Quo warranto by the people, on the relation of Smith Misner, to test the right of

Charles Hanker and others to act as trustees of the village of Prairie City. From a judgment vacating an order granting leave to file an information, relator brings error. Affirmed.

W. H. McDonald and Brewer, Logan & Greathouse, for plaintiff in error. Lyle Decius, for defendants in error.

CARTER, J. This writ of error was sued out to reverse a judgment of the circuit court of Cumberland county vacating an order made in vacation by one of the judges of that court granting leave to the relator to file an information in the nature of a quo warranto. The court also quashed the information and writ in said cause. It was agreed on behalf of the parties to the cause that the motion to vacate said order granting leave should be heard and determined as if it were an original petition and motion by the relator for leave to file the information.

The information was filed to oust the respondents, as trustees of the village of Toledo, in Cumberland county, on the ground that the statute for the incorporation of cities and villages had not been complied with in incorporating the town of Prairie City in 1866, and in changing said town of Prairie City to the village of Toledo in 1881. In other words, the contention of the relator was that the village of Toledo, of which village the respondents were the acting trustees, had never been legally incorporated. We think it unnecessary to enter upon a discussion of the alleged defects in the proceedings for incorporation, and for the change of the original town, and its successor, the village of Prairie City, to the present village of Toledo, for the reason it sufficiently appears that the court properly refused leave to file because of the long delay of the relator before making his application, and because of his acquiescence in the organization and acts of the village of which he was an inhabitant; the delay having been for a period of upwards of 20 years. It appeared that the village had exercised, without question, the powers and functions of a municipal corporation for a period of 20 years; had levied and collected taxes, improved its streets, acquired public property, and made provision for lighting the city and for the establishment of a system of waterworks, for which public moneys had been expended, and municipal bonds issued and sold. Under the circumstances, we are satisfied the court did not abuse its discretion in refusing leave to file the information, or what, under the agreed proceedings, amounted to the same thing,-the vacating of the leave theretofore granted. "The proceeding by information in the nature of a quo warranto is a subject for the exercise of sound judicial discretion. The rule is the same as in certiorari under like circumstances,

and the remedy is not a matter of absolute right. It is proper for the court, in the exercise of discretion, to consider all the circumstances of the case, the position and motives of the relator in having the proceeding instituted, and the necessity and policy of allowing the remedy. An unreasonable delay or an acquiescence on the part of the persons complaining, as well as consideration of the public interest or convenience, will justify a refusal to grant leave to file the information or to proceed to judgment, although no statute of limitations has intervened." People v. Schnepp, 179 Ill. 305, 53 N. E. 632, and cases therein cited. Whether the informalities in the organization set up in the affidavits of the relator would or not, if availed of in apt time and in the public interest, have required a judgment of ouster, is not now the controlling question; but the question is, did the court abuse its discretion in refusing leave to the relator to make the inquiry? We are of the opinion that it did not, but that the decision rendered was the correct one.

The judgment must be affirmed. Judgment affirmed.

1. A conveyance to A. and her children, born and to be born, conveys an equal interest to A. and each of her children in existence when the deed is executed, in exclusion of after-born children.1

2. Rev. St. c. 77, § 12, provides that real estate taken under execution, if susceptible of division, shall be sold in separate tracts or lots, and only so much shall be sold as is necessary to satisfy the execution and costs. An undivided interest worth $3,200 in an 80-acre tract of land was sold under execution for $145, the sheriff's return showing that it was first offered for sale in separate tracts of 20 acres each, after which the entire interest was sold for want of bids for the 20-acre tracts. The certificate of sale, drawn as directed by the purchaser, who was an attorney, stated that the interest was first offered in 20-acre tracts, then in 40-acre and 60-acre tracts, before the entire 80-acre tract was sold. Held, that the inconsistency between the return of the sale and the certificate was such a want of conformity required in such muniments of title as would cause the gross inadequacy of the purchase price to invalidate the sale; a sale of the entire 80-acre tract without first offering it in 20-acre, 40-acre, and 60-acre tracts, being in violation of the statute.

3. Where a sheriff, acting on the advice of the attorney of a judgment creditor, levies on more land than is necessary, and sells it to the attorney in the shortest possible time and for a grossly inadequate consideration, the failure of the sheriff before sale to demand payment of the execution from the landowner invalidates the sale; the attorney being chargeable with notice of such irregularity.

4. Rev. St. c. 77, § 12, requiring real estate

1 See Deeds, vol. 16, Cent. Dig. §§ 19, 21, 63 [h, il, 423, 426.

sold under execution to be offered for sale in separate lots, applies to an undivided interest in such property.

5. Where a judgment debtor, having an interest in common in 80 acres, resides and has her improvements on one 40, and her interest in such 40 is worth over $1,000, an execution sale of her interest in the other 40 is not rendered invalid by the failure to set off a homestead to her.

Appeal from circuit court, Moultrie county; W. G. Cochran, Judge.

Partition by E. J. Miller against Mary Elizabeth McAlister and others. From a decree for defendant, the plaintiff appeals. Affirmed.

This is a bill, filed on February 6, 1901, by the appellant, E. J. Miller, against the appellees, Mary Elizabeth McAlister and William McAlister and others, for the partition of the W. 2 of the S. W. 4 of section 12 in township 15 N., range 6 E. of the third principal meridian, in Moultrie county. Appellant claims in his bill that he is the owner of an undivided interest in the 80 acres in question as tenant in common with the appellees. Appellees filed an answer to the bill, denying that appellant owned any interest in the premises. The other defendants below also filed answer making the same denial. Replications were filed to the answers. On March 11, 1901, the present appellees, Mary Elizabeth McAlister and William McAlister, defendants below, filed a cross bill, praying that the sheriff's sale and sheriff's deed, under which the appellant claims title, be set aside and declared to be null and void, and that the cross complainants be given the right to redeem from said sheriff's sale, by a day to be fixed by the court, upon the payment of the amount found to be due to the appellant upon the judgment, under which the sheriff's sale was made. After a demurrer to the cross bill was overruled, the appellant answered the cross bill, denying all irregularities or fraud in the sale under the judgment hereinafter mentioned. A replication was filed to the cross bill. The cause was referred to a master, who took testimony and reported his conclusions. Objections were filed to the master's report, and overruled, and stood as exceptions thereto. On May 25, 1901, the court rendered a final decree, overruling the exceptions to the first, fifth, and tenth findings made by the master, and sustaining the exceptions to the second, third, fourth, sixth, seventh, eighth, ninth, and eleventh findings made by the master, and also finding that the allegations in the cross bill, relative to irregularities in the sheriff's sale hereinafter referred to, were true, and that the cross complainants were entitled to relief as prayed in the cross bill, and ordered that appellees should pay to the appellant the amount, for which their respective interests in the property, as hereinafter stated, were sold, with interest from the day of sale, within a certain time, and that, in case of such pay

ment, appellant would not be entitled to a partition, but that, in case of failure to make such payment within said time, appellant would be entitled to a partition as prayed in the original bill. The present appeal is prosecuted from the decree so entered by the court below. Cross errors are assigned by the appellees, assigning, as error in the action of the court below, that it sustained the exceptions to the master's report numbered 2, 3, 4, 6, 7, 8, and 9.

The material facts, as shown by the pleadings, proofs, master's report, and decree, are substantially as follows: On August 23, 1865, William P. Moore, father of the appellee Mary E. McAlister, who was the wife of Robert McAlister, conveyed the W. 1⁄2 of the S. W. 4 of section 12, as above described, to Mary Elizabeth McAlister "and her children, born and to be born, * * * and their heirs, etc., forever," which deed was recorded on March 22, 1866. Mary Elizabeth McAlister and her husband, Robert McAlister, had eight children born between May, 1858, and March, 1881. They also had several children who died in infancy; but it is stipulated that none of the children who so died in infancy were living in 1865, when the deed to Mrs. McAlister was executed. Only two of her children were living when the deed was executed in 1865, to wit, the appellee George W. McAlister, known as William McAlister, born May 6, 1858, and J. O. McAlister, known as Owen McAlister, born April 29, 1864. The other six of the eight children above referred to were born after the execution of the deed. Soon after its execution, the appellee Mary Elizabeth McAlister and her husband, Robert McAlister, took possession of the premises. On March 16, 1898, W. D. Hoover recovered a judgment in the circuit court of Moultrie county for the sum of $114.35 and costs of suit against the appellees Mary Elizabeth McAlister and William McAlister. The suit in which this judgment was rendered was brought upon a note for $70, payable eight months after date to the order of Hoover, and signed by "Wm. McAlister Bro." and "Mary E. McAlister." The judgment was rendered by default, and the appellant, E. J. Miller, was the attorney of Hoover, who brought the suit and obtained the judgment. On March 31, 1898, an execution was issued upon the judgment out of the circuit court of Moultrie county, in which it was rendered, against the appellees, which execution was received by the sheriff of that county on the date of its issue, and was returned on June 28, 1898, no property found. On November 9, 1898, an alias execution was issued upon the judgment, directed to said sheriff, which alias execution was on November 10, 1898, levied upon the interests of appellees in the tract of land above described. The levy and return are as follows: "By virtue of the within and foregoing execution and process, I have levied

as the

on the west half (1⁄2) of the southwest quarter (4), section twelve (12), property of William McAlister; also the southwest quarter of the southwest quarter of section twelve (12), as the property of Mary Elizabeth McAlister,-all situsted in the county of Moultrie and state of Illinois." After giving notice by posting and publication, the sheriff, on December 3, 1898, made a sale of the entire interest of William McAlister in the 80-acre tract for $75, and the entire interest of Mary Elizabeth McAlister in the south half of the 80-acre tract for $70, amounting altogether to $145, to appellant, E. J. Miller, the attorney for Hoover, the plaintiff in the judgment. The sheriff made written return of the execution as satisfied in full by sale on December 3, 1898, and executed and delivered to appellant, the purchaser at the sale, a certificate of sale dated December 3, 1898. No redemption was made from the sale, and on March 10, 1900, the sheriff executed a sheriff's deed to the appellant, E. J. Miller, which deed was recorded on March 10, 1900. The appellant claims his interest in the premises in question under the sheriff's deed so executed as aforesaid. The cross bill seeks to set aside said sheriff's deed for certain alleged irregularities, and unfair or fraudulent conduct on the part of appellant, more particularly stated and referred to in the opinion.

John R. Eden and J. K. Martin, for appellant. Whitaker & Thompson, for appellees.

MAGRUDER, C. J. (after stating the face. The main question involved in this case is the validity of the sheriff's deed executed to the appellant. If that deed is valid, the appellant acquired thereby the undivided interests in the property in question belonging to the appellees which were sold at the sheriff's sale, and as the owner of such undivided interests is entitled to partition, as prayed in the original bill. If, however, the sheriff's deed is invalid, then the prayer of the cross bill filed by the appellees in the court below, permitting a redemption from the sheriff's sale upon the payment by the appellees of the amount of such sale and interest thereon, and setting aside and canceling the sheriff's deed in case of such payment, was properly granted by the court below.

1. The court below found in its decree that Mary E. McAlister, William McAlister, and Owen McAlister took the entire estate in the land in question from William P. Moore, the father of Mrs. McAlister, under the deed executed by him on August 23, 1865. We are of the opinion that this finding of the court was correct. The deed in question conveyed the 80 acres here in controversy to Mary E. McAlister "and her children, born and to be born." The only children in existence when the deed was made on August 23, 1865, were the appellee William McAlis

ter and his brother, Owen McAlister, and therefore these were the only children of Mary E. McAlister who took title under the deed. The children born after the date of the deed took nothing. Hence Mary Elizabeth McAlister and her two sons, William McAlister and Owen McAlister, became the owners, by virtue of the deed, each of an undivided one-third of the premises. A grantee must be in esse at the time a deed is executed; otherwise, no title will pass by the deed. An unborn child has no such existence as will enable it to take a present grant of lands by deed. In Morris v. Caudle, 178 Ill. 9, 52 N. E. 1036, 44 L. R. A. 489, 69 Am. St. Rep. 282, we held that a deed to a grantee in esse and his unborn brothers and sisters, which is delivered and recorded after the birth and death of a sister, is valid as to the grantee in esse at the execution of the deed, but creates no rights in the deceased sister or those claiming under her, and that, while an unborn child may inherit property by descent or take by devise upon coming into being, yet it cannot take a present grant of lands by deed, although in ventre sa mere when the deed was executed. Also, in Faloon v. Simshauser, 130 Ill. 649, 22 N. E. 835, we held that, where a deed of land is made to a woman by name and "her chil dren," she and her children living at the time of the execution of the deed will take as tenants in common, but a child born thereafter will take nothing, and that, in the case of a grant of an immediate estate in possession, the grantee must be in esse, and a deed of that kind may be avoided by showing that the grantee came into being subsequently to the delivery of the deed.

2. The ground upon which the appellees claim that the sheriff's deed to the appel lant should be set aside is that at the sheriff's sale the interests of the appellees in the property were sold for a grossly inadequate price, and that, in connection with such inadequacy of price, there were irregularities which will justify a court of equity in setting aside the sheriff's deed and allowing a redemption from the sheriff's sale. One of the irregularities insisted upon is that the land levied upon was sold en masse, and that, although each subdivision of the land may have been offered separately, yet that, when no bids were made upon the tracts so separately offered, the sheriff should have added two of them together, and then three of them together, and so on until all the tracts had been thus offered, and that, inasmuch as the latter course was not pursued, it was not proper to offer a sale of the property en masse. Another of the irregularities insisted upon is that no demand was ever made upon the defendants in the execution for the payment of the same, and that they were never notified of the issuance of the execution under which the sale was made, or that any sale was or was to be made. Another of the irregularities insisted upon is that