Opinion of the Court. the Bloomington property, and tendering deeds for the Missouri property, together with appellee's note for three hundred dollars, part of the purchase money. This being refused by appellee, this bill was filed by appellants, and pending the bill the house was consumed by fire, on which, however, appellee had effected an insurance of three thousand dollars. The court dismissed the bill and complainants appealed. There is no question of law made except the one we have discussed, and there is some conflict in the testimony, but a careful examination of it, as we find it in the record, satisfies us appellant has not received from appellee what he contracted for, and which contract he made wholly on the representations of appellee, which have proved to be untrue. It is said by appellee, there was a mistake in conveying the land as in section fifteen-that he supposed the "Smith farm" was on that section, but is willing and offers to convey the land in fact occupied by Smith in sections eighteen and twentyfour, and he insists, that a mistake being made is no ground for the rescission of the contract, as the court can and will correct the mistake. But this consideration should not prevail in this case, because appellee represented the land he was selling to be worth twenty dollars per acre, which he had purchased but a short time previously for four dollars per acre, and he asserted to appellant that such land was selling for twenty dollars an acre in that neighborhood. This he based upon a letter said to have been received by him from one Selsor, a land agent in that county. Selsor in his deposition says, the lands he referred to in that letter were among the best improved farms in that portion of Cedar and Vernon Counties; he says he had no idea of fixing the price of raw lands by these figures, and did not suppose any one would be so foolish as to attempt it. That letter, which appellee says was burnt up in the building when it was destroyed, was to this effect: "We have sold within the last two weeks ten thousand dollars worth of land, from fifteen to twenty-five dollars an acre." This Opinion of the Court. was so construed by appellee to appellant as to induce the latter to believe they were lands in the neighborhood of those he was about to purchase. The town property was of small value. Now, under such circumstances, it would not be just to allow appellee to correct the mistake in the land and claim the contract as made, but it would be just, as a mistake was made by appellee in the deed, to permit the injured party to avail of it, and, through that, repudiate the entire contract. In a case where false representations have been made, it is the province of a court of equity, if applied to for that purpose, to rescind the contract, putting the parties in statu quo. It is claimed by appellee that the Bloomington property was taken at a very high valuation, and that he ought to be permitted to show that appellant has received from him its full value. This we do not consider as the question before us. The question is, did appellant get what he bargained for? That he did not we think the evidence satisfactorily shows. Appellant's right to the insurance money will hardly be questioned, as the building upon the lot when sold, is now represented by that money, and after deducting the premium paid by appellee and the cost of the addition to the building which he erected, and was covered by the insurance, we are of opinion the company should pay the balance to appellant. On the point that Mrs. Mitchell, appellant's wife, was improperly rejected as a witness, we think the court ruled correctly; the case was in no correct legal sense her own case. The views here expressed reverse the decree of the circuit court dismissing the bill. The cause is remanded for further proceedings consistent with this opinion. Decree reversed. SCOTT, J., did not hear the argument in this case, and gave no opinion. Syllabus. Statement of the case. LEONARD RIGOR ข. JAMES H. FRYE et al. 1. COLOR OF TITLE-limitation. A bond conditioned for the execution 62 507 163 501 62 507 168 585 62 507 172 343 62 507 186 528 62 507 and delivery of a deed upon a compliance with its terms in the future is 195 1207 not color of title within any fair construction that has been or can be given e195 1210 to the 8th section of Ch. 24 R. S. 1845. It does not, on its face, purport to convey title. 2. SAME. To constitute color of title under either the eighth or ninth sections of this statute, the deed or instrument must purport, on its face, to convey the title to the land to the grantee named. It must apparently transfer the title to the holder of an interest in the land to enable him to invoke the aid of either section of the statute. 3. SAME. In ejectment, the plaintiff showed a prima facie title to the land in controversy. The defendant had been in possession of the premises seven years before the institution of the suit, and had paid all the taxes legally assessed thereon during that period, but had no deed purporting to convey the title to the same during the first four years of his possession. During that period he only held a bond for a deed from a person whose only claim to the land was a certificate of purchase at a tax sale: Held, that the defendant could not invoke the aid of the eighth section of the conveyance act to defeat a recovery. 4. SAME. It seems that no distinction can be taken as to what constitutes color of title under the eighth and ninth sections of the conveyance act. APPEAL from the Circuit Court of Brown County; the Hon. C. L. HIGBEE, Judge, presiding. This was an action of ejectment for the recovery of a tract of land in Brown County. After the defendant below had closed his case, the court, on motion, excluded from the jury all the oral evidence of defendant's possession and payment of taxes, to which defendant excepted. The court instructed the jury that the plaintiff below had made out a legal title to the premises, and that the defendant had failed to show any claim and color of title, as required by the statute, and that they should find for the plaintiff. Verdict accordingly. Opinion of the Court. Mr. W. L. VANDEVENTER and Mr. J. C. THOMPSON, for the appellant. Mr. J. S. IRWIN, for the appellees. Mr. JUSTICE SCOTT delivered the opinion of the Court: It is admitted, by a stipulation in the record, that the appellees have shown a prima facic title to the premises in controversy sufficient to authorize a judgment in their favor, unless the appellant, by his proof, has brought himself within the protection of the eighth section chapter twenty-four R. S. 1845. The single inquiry involved in the case is, whether a bond for a deed upon condition of a compliance with its terms in futuro will constitute "claim and color of title" within the meaning of that section of the conveyance act. It is not controverted that the appellant was in possession of the premises seven successive years, and paid all the taxes legally assessed thereon during that period. It is conceded also, that the appellant had no deed purporting to convey the title to the premises during the first four years of his possession. During that period he only claimed to have a bond for a deed from one Edward M. Clark. The only title claimed by Clark himself to the land, was a certificate of purchase at a tax sale. He did not claim any title to the land through any one who claimed to own it under a deed purporting to convey the title. We do not understand that any distinction can be taken as to what constitutes "color of title," under sections eight and nine of the conveyance act. Hence, the definitions given as to what constitutes "color of title" in the former decisions of this court under one section, may apply with equal exactness to the other. It was held in Bride v. Wall, 23 Ill. 507, that a certificate of purchase at a tax sale did not constitute color of title under the ninth section of the conveyance act. The decision Opinion of the Court. proceeds on the ground that it is not paper title, within the meaning of the statute, and does not purport in terms to convey the title. For the same reason, it was held in Spellman v. Curtenius, 12 Ill. 409, that a certificate of a land office, showing that at one time a party was entitled to a pre-emption did not constitute color of title. To constitute color of title under either section of this statute, the deed or other instrument must purport on its face to convey the title to the land to the grantee named. It must apparently transfer the title to the holder of an interest in the land invoking the aid of either section of this statute. v. Wall, supra; Dickenson v. Breeden, 30 Ill. 279; Morrison et al. v. Norman et al., 47 Ill. 477; Huls v. Buntin, 47 Ill. 396. Bride In the case before us, the bond did not purport on its face to convey the title to the land to the appellant. It was, at most, an executory agreement, entitling the appellant at a future day to a deed that would convey the title, in case he should comply with certain conditions. It did not constitute paper title" in the sense in which those words are used in the statute. The appellant, therefore, had no color of title, within any fair construction that has been, or can be, given to the statute, nor did he hold any claim or color of title from any one, who, himself, had color of title. Inasmuch as it does not appear from the record that he had color of title to the land in controversy, accompanied by possession and payment of taxes for the requisite length of time, . to which he could invoke the aid of the eighth section of the conveyance act, to protect his possession, the judgment must be affirmed. Judgment affirmed. |