AS BETWEEN VENDOR AND PURCHASER. See VENDOR AND PUR-
CHASER, 2, 4, 5.
1. A bill was filed by the heirs-at-law of a deceased person to set
aside a sale of land made by the administrator under an order of court,
on the ground that he was the real purchaser at his own sale, through
the medium of a relative, who, after receiving a deed from the admin-
istrator, conveyed the premises to the latter. It was shown that on a
former bill filed by the widow and infant heirs against the adminis-
trator, a decree was entered, by consent, setting off to the widow a
homestead in the premises, the bill seeking no other relief: Held, that
the decree in the prior suit was no bar to the second bill, as the matters
involved in it were not adjudicated in the prior bill. Williams v. Walker
2. Its effect on the title to the property. See REPLEVIN, 4.
1. Matter of opinion. Where a party, before purchasing an undivided
half of a tract of land, went upon it to satisfy himself of its situation
and value, and after its partition with the defendant, the owner of the
other half filed his bill in chancery, alleging that the defendant had
falsely represented that the half set apart to him was of less value than
the other half: Held, that, as the complainant had seen the land,
though he had not gone over it with a view to have it divided, he could
not be heard to say that he relied on the representations of the com-
parative value of the two parts thereof, and that it would be presumed
he acted upon his own judgment. Fisher v. Dillon, 379.
2. In such case, a statement of the relative value of two portions of
a tract of land, with a view to a division between the owners, will be
regarded simply as an expression of opinion as to value. Ibid. 379.
AS BETWEEN PRINCIPAL AND AGENT.
3. And how far the fraud of the agent will affect the title of a purchaser from
him. See AGENCY, 2 to 9.
4. Which recites a greater indebtedness than exists. See MORTGAGES,
16.
RESCISSION OF CONTRACT FOR FRAUD. See CHANCERY, 20 to 27.
IN OBTAINING THE EXECUTION OF A PROMISSORY NOTE,
1. What constitutes. In an action on a promissory note by an assignee
thereof before maturity against the maker, the defendant filed a plea,
which disclosed facts showing that by an artifice of the payee of the
note the defendant was induced to sign it as one payable absolutely,
under the belief that he was signing another one of a different charac-
ter, payable only on a contingency: Held, that such facts constituted
fraud, not merely in relation to the contract or consideration of the
note, but such fraud and circumvention in obtaining its execution as,
under the statute, was pleadable in bar to any action on the note by any
assignee. Munson v. Nichols, 111.
2. Negligence of the maker—whether it may be urged on demurrer to a plea.
Nor could it be urged as matter of law on demurrer to such a plea that
it disclosed facts showing such negligence on the part of the payee in
executing the note and allowing it to go into circulation as avoided the
defense. That would be a question of fact for the jury to determine.
Ibid. 111.
FRAUD, STATUTE OF. See STATUTE OF FRAUDS.
DEFINITION OF THE WORD. See WILLS, 10.
TIME OF ENTERING FINAL ORDER.
1. In this case, notice of the petition to establish a road was posted
October 21. Thirty days thereafter (November 20th) the commissioners
of highways met, in pursuance of notice, to hear reasons for and against
the establishment of the road, and the prayer of the petition was granted
and a survey ordered, which was entered of record. No final order was
then made, and there was no adjournment entered to a future day.
Nothing further was done by the commissioners until the 4th of Decem-
ber following, when the final order was made establishing the road, and
on the 14th of December the damages were assessed: Held, on certiorari,
that the final order was void, and that the proceedings should be
quashed. Wood v. Com'rs. of Highways, 391.
2. The statute evidently contemplates that the final order establishing
a road should be made within the thirty days from the posting of the
petition, unless for good cause there is an adjournment for a reasonable
time, entered on the record, so that parties interested may be advised
of any future meeting in relation to the road. Ibid. 391.
3. If. at the meeting to hear reasons, of which notice had been given,
the officers had entered an order for adjournment upon their records,
for sufficient cause, and for a reasonable time, then they might be justi-
fied in making the final order after the expiration of the thirty days, as
HIGHWAYS. TIME OF ENTERING FINAL ORDER.
the land owners would then have some notice of the subsequent action.
Wood v. Com'rs of Highways, 391.
NOTICE OF MEETING TO HEAR REASONS.
4. The notice of the time and place of meeting of the commissioners
to hear reasons for and against the proposed action, is in the nature of
a condition precedent to any action on the part of the commissioners,
and to the exercise of the power to appropriate the land of the citizen
for the use of the road. Ibid. 391.
5. Excavation by a private person—liability of town-notice. Where a
party without the consent of the authorities of an incorporated town,
dug and left open a large pit in the street, along the sidewalk, in front
of land owned by him, without any warning to passers-by, and while
the same was so left exposed a person in the night-time, while exercising
due care, fell into the pit and was injured: Held, that the town was not
liable unless it had actual notice of the nuisance, or it had remained a
sufficient time for notice to be implied. Fahey v. Town of Harvard,
28.
JUDGMENT IN CRIMINAL PROSECUTION.
1. Under the laws of 1851 and 1857, the homestead is exempt from
sale under a judgment for a fine and costs rendered in a criminal pros-
ecution against the husband for a misdemeanor. Loomis v. Gerson, 11.
PAYMENT OF THE $1,000 TO JUDGMENT DEBTOR.
2. But where the homestead was sold under such a judgment, it was
held, that if the purchaser would pay to the grantee of the judgment
debtor the $1,000 exemption, he should be permitted to do so, and retain
the title. Ibid. 11.
ABANDONMENT OF HOMESTEAD.
3. What constitutes. When a husband and wife had conveyed their
homestead to A to secure a debt, and afterward procured A to convey
the same to B, who paid the debt and something over, and B thereupon
leased the premises to the husband, and gave the wife a bond for a deed
to be made upon payment of a given sum within one year, but dis-
possessed them by forcible detainer before the expiration of the lease,
and they left this State and resided about two years in Nebraska: Held,
that if the husband and wife had any homestead right in the premises,
it was abandoned and lost by their removing to and acquiring a home
in Nebraska. Carr v. Rising et ux. 14.
4. An intervening lien attaching. In 1859 a husband and wife executed
a deed of trust upon premises which had been occupied by them as a
homestead, the title to which was in the wife, there being no release of
37-62D ILL,
HOMESTEAD. ABANDONMENT OF HOMESTEAD.
the homestead right. Two years prior thereto they removed from the
premises and were continuously absent until 1862, a period of five years,
one year of which they resided out of the county. The husband when
he left had contracted to open a farm upon which he was to reside three
years. During the absence the home premises were rented to different
persons. They were sold under the trust deed in March, 1861: Held,
that the homestead right was lost by abandonment, and that the lien
attached while such abandonment was complete, and could not be de-
feated by returning and residing on the premises. Cahill v. Wilson,
137.
5. Whether notice to creditor. When a party left his homestead some
two years before he incumbered the same, and changed his residence,
accompanied by his family, with a view of opening a farm and bettering
his condition, it seems that the creditor could not be charged with in-
formation that the premises were claimed as a homestead, except by the
actual residence of the party. The occupancy of a tenant will afford
no notice of the right. Ibid. 137.
CONVEYANCE FROM HUSBAND TO WIFE.
1. Of its validity. A husband having enlisted in the army during the
late civil war, by deed conveyed his whole real estate to his wife for the
expressed consideration of one dollar, to enable the latter to dispose of
the same for the benefit of herself and family in case of his death.
After his death the wife sold and conveyed the same for its full value,
and the proceeds were applied toward the support of herself and
family. The heirs of the husband after their majority executed their
conveyance for the same premises, and their grantee brought ejectment
against the party holding under the deed from the wife; Held, on bill
filed to enjoin the suit at law, that the husband's deed to his wife was
void at law, but would be upheld in a court of equity. Dale et al. v.
Lincoln, 22.
ILLINOIS CENTRAL RAILROAD COMPANY.
SALE OF ITS LANDS UPON CREDIT.
1. Of compelling more prompt sales—and herein, of the duty of the company
in respect to prompt collections. By the act of 1854 (Sess. Laws 192), a
reasonable discretion was granted to this company to sell its lands upon
credit, and authority may properly be inferred to fix a reasonable min-
imum price. The People v. The Illinois Central Railroad Co. 510.
2. The courts have power to control any attempted abuse of the
authority to sell on credit. The credit should not be extended so long
as to postpone to an indefinite or an unusual time the day of payment.
The price should not be so regulated as to prevent, or unreasonably re-
tard, sales. Ibid. 510.
ILLINOIS CENTRAL RAILROAD COMPANY. SALE OF ITS LANDS
3. The company should not permit purchasers to retain the purchase
money after maturity to evade the law, or with the view of relief from
taxation, but should use all usual and reasonable efforts to enforce col-
lections without unnecessary harassment or rigorous oppression of the
debtor. Ordinary delay, not intended to further any bad or unlawful
purpose, will not afford sufficient grounds for awarding a writ of man-
damus. The People v. The Illinois Central Railroad Co. 510.
4. The provision in the charter of the company directing that all
the lands remaining unsold at the expiration of ten years from the com-
pletion of the road and its branches, shall be offered at public sale an-
nually, until the whole is disposed of, imposes a duty in such vague
and general terms, that this court, in view of the serious consequences
and difficulties in the way, does not feel justified in enforcing it by
mandamus without further legislation. If the legislature should pre-
scribe the terms of sale, the mode in which it should be conducted, not
inconsistent with the rights of the company, and make the directions
plain and definite, this court can then act upon its requirements and
enforce them. Ibid. 510.
TO PREVENT THE HOLDING OF AN ELECTION.
1. A court of chancery has no jurisdiction to enjoin the holding of
an election by the people, and a writ issued for that purpose is void, so
that to disregard the writ will not subject a party to punishment as for
a contempt of court. Darst et al. v. The People, 306.
TO PREVENT THE DISTURBANCE OF EASEMENTS.
2. On severance of the unity of seizin of a building. When the owner had
so constructed and arranged a large building of three stories, consisting
of many apartments, rooms, and offices, devoted to different uses, that
certain stairways furnished the only access to the upper stories, and the
stairways and halls were lighted by a skylight in the roof, and the same
was so continuously used until after his death, when one end of the
building, including one-half of the stairways, was assigned to his widow
as her dower, and the other portion, including all the skylight, passed
to devisees under his will, and the devisees proposed to tear down their
part of the building, and erect another in its stead four stories high,
not because of dilapidation, but because it was not of fine enough qual-
ity, the effect of which was practically to destroy access to the second
story of the widow's portion, destroy all access to the third story, and
the lights, and render the rest of the building unsafe by the removal of
the necessary supports to the wall, and untenantable, thereby causing
great injury and damage: Held, that a decree on bill by the widow
against the devisees, restraining them from their proposed action, under
the circumstances of the case, was proper. Morrison et al. v. King et al. 30.
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