Cox v. Montgomery, 43 Ill. 110 (1867)

Jan. 1867 · Illinois Supreme Court

43 Ill. 110

Andrew J. Cox v. John Montgomery.

Laches—what will he emsid&red. Where a party flies 'a bill to avoid a contract for the sale of land within ten months from the time the fraud was . discovered, and that delay is explained by the fact that he was advised by counsel to postpone the commencement of a suit until the decision of another then pending, it is not such laches as would bar his relief.

Appeal from the Circuit Court of Iroquois county; the Hon. Charles B. Starr, Judge, presiding.

This case was heard in the Supreme Court at the January Term,. 1865, and remanded for the purpose of allowing the appellee to explain, if he could, the reason of the delay in the institution of his suit. The case is reported in 36 Ill. 396.

At the February Term, 1866, of the Circuit Court of Iroquois county, the cause was again tried, and the court found that the suit had been instituted without any reasonable delay, and decreed that the conveyance be set aside, etc., as in the former decree. The defendants appealed to this court.

The contract sought to be rescinded was made in January, 1862, the alleged fraud discovered about the 10th of July following. A short time after, the complainant went to the office of Wood & Long, attorneys, and was advised that his cause was somewhat doubtful, and that he had better defer bringing suit until a case they then had pending in court, of a similar character, was decided. The complainant had the ague during the fall of 1862, and was taken very sick about the 7th of January, 1863, and confined to his bed till April following. On the 20th of April, he went to Middleport, and procured an attorney named Washington to prepare and file a bill. This bill was filed on the 2d day of May, 1863; and on the 27th of November following, it was dismissed; and the bill in the present case immediately filed.

Messrs. George B. Joiner and Wood & Long, for the appellant.

Messrs. Roff & Doyle, for the appellee.

Per Curiam :

When this case was formerly before the court, as reported in 36 Ill. 396, we held Cox had committed a fraud on Montgomery in the exchange of lands, which entitled the latter to a rescission of the contract, if he could explain the apparent delay in commencing proceedings for that purpose, and we remanded the case to allow such explanation to be made. It now appears, that Montgomery filed his first bill on the 2d of May, 1863, and that bill having been dismissed on the 27th of November, 1863, the present bill was filed on that day. Less than ten months intervened between the time when Montgomery first acquired knowledge of the fraud and the institution of a suit, and that delay is explained by the fact, that he was advised by counsel to postpone the commencement of a suit until the decision of another then pending. We are of opinion this was not such laches as should bar his relief, and the Circuit Court thus held.

It is urged, however, by the appellant, that he was entitled to payment for his improvements, which appear, by the record, to have been worth about one hundred and twenty-five dollars, as also to interest on the $300 and taxes. If this was an error, it is one which has worked the appellant no injury, and for which we do not deem it necessary to remand this cause, since, if such an account had been taken,'the appellee would have been entitled to claim rents and profits, and it is manifest, from the record before us, that these would more than overbalance the claims of the appellant. The decree is affirmed.

Deoree affirmed.