Bitzer v. Orban

Citations

• 88 Ill. 130

Syllabus

<p>1. Sale—rights of parties on rescission. Where lots were sold, the purchaser paying a part of the price, giving his notes for the balance, and received a bond for a good and sufficient deed on full payment, and went into possession, removed a house from one of the lots, and a fence, and dug up the soil for making brick, and the vendor, when the last note matured, tendered him a warranty deed and demanded payment, which was refused, the vendor not being, able at the time to make a good title, and he afterwards conveyed the lots to another, it was held, that as the vendor was not in a position to declare a forfeiture, the vendee had a right to recover back what he had paid, with interest, against which the vendor could set of? the value of the building and fence, the value of the use and occupation of the premises, and for digging up the soil, and for any other damage he might have sustained.</p> <p>2. Where the vendor of land not conveyed rescinds the contract by conveying to another, for non-payment, he having first tendered a conveyance, when he can not make the title agreed to be made he will be liable to refund any payments made to him, with interest; but if the vendee has had the use of the premises, and damaged the same, the value of the use of the property, and the damage done, may be set off against the vendee’s claim.</p>