Cooper v. Tyler

Citations

• 46 Ill. 462

Syllabus

<p>1. Rescission op contract—of what will authorize a parti/ to treat a contract as rescinded. Where a vendor of lands executes to his vendee a bond for a deed, in which he agrees to execute a deed to his vendee in sixty days from the date thereof, without condition, and receives his note for the remainder of the purchase money, with a power of attorney to confess judgment, and at the expiration of sixty days, offers to make a deed,' if he will execute a mortgage to secure the unpaid note, which the vendee refuses to do, and the vendor, not having complied with the conditions of his bond, afterward obtains judgment by confession on the note, in a foreign county, without notice, such vendee not having exercised any right of ownership over the land, nor by any subsequent act committed himself to a performance on his part: Held, that the vendee had a right to treat the contract as rescinded, and enjoin the collection of the judgment.</p> <p>2. Jurisdiction in chancery—of a defense at law. Where the holder of a note, executed with a power of attorney to confess judgment, procured judgment thereon, in a foreign county, without notice to the debtor, the latter will not be precluded from resorting to a court of chancery, although the ground of relief sought in chancery could have been made available in a suit at law, had the debtor had notice thereof.</p> <p>3. Burden of proof—affirmative allegations, by the defcmdaniin chancery. Where the answer to a bill in chancery sets up new matter, not responsive to the bill, the onus is upon the defendant to prove the allegations as charged.</p> <p>4. Specific performance—of subsequent incumbrance of land by the vendor. If; from the negligence or default of the vendor, the property becomes incumbered byjudgments, taxes, forfeitures or otherwise, before the time for conveying the same, or before he offers to perform his contract, he cannot insist upon performance by the other party, until he relieves the title from such subsequent in