Bond v. Ramsey

Citations

• 89 Ill. 29

Syllabus

<p>1. Vendor and vendee—resisting payment of notes for price. Although an executor’s deed may be defective in purporting to convey liis own individual interest in real estate, he having no legal interest in it, but. only a naked power to sell, still, the purchaser acquires an equitable estate by the deed, which he must reconvey, or offer to reconvey, before he can make any defense to the payment of the notes given for the purchase money.</p> <p>2. If an 'executor, under a power, agrees to sell and convey all the interest of his testator in land, even if the first deed made only purported to convey the interest the executor had in the property, yet, if another deed is made and tendered before suit brought for the recovery of the purchase money, which does convey all the interest the testator had, this is all the purchaser can exact, and a recovery may be had.</p> <p>3. To authorize a purchaser of real estate in resisting payment of the purchase money on the ground he was induced to make the purchase by the representation of the vendor, the executor of a will, that the title was perfect in the testator, which was not true, there must have been such fraud on the part of the vendor as would authorize the vendee to rescind the contract in tolo, by reconveying whatever estate he may have obtained under the executor’s deed.</p> <p>4. Rescission—party must make Ms election. To resist the payment of the purchase money of land for fraud, the purchaser must elect to rescind the contract, and it is doubtful whether his grantees, after his death, can reconvey the property, so as to work a rescission of the contract and enable him to resist payment.</p> <p>5. Sale—caveat emptor applies to executor’s sale. In the absence of actual fraud on the part of an executor to induce the purchase of land of his testator, the rule of caveat emptor applies in all its strictness. The general rule is, that in such sales a purchaser, taking no covenants to cover defects in title, is absolutely wi