Drake v. Latham

Citations

• 50 Ill. 270

Syllabus

<p>1. Fraud—misrepresentation as to title. If a persons sells a tract of land, claiming to be the owner, and knowing that he is not, he is guilty of a fraud, for which the vendee may rescind the contract.</p> <p>2. But if he professes to sell, not the paramount title, but only a claim derived from a particular source, such as a sale of the land for taxes, and he has a claim thus derived, he is not guilty of a fraud for which the vendee can rescind, merely because he expresses an opinion as to the legal value or strength of his claim, which the facts do not justify, so long as he makes no false statement as to what those facts are.</p> <p>3. Interest—at what rate recoverable—under act of 1849. Upon a note given while the interest law of 1849 was in force, reserving interest at ten per cent., where the consideration was not borrowed money, only six per cent, can be recovered.</p> <p>4. Same—effect of act of 1857. The act of 1857 repealed all penalties for reserving a greater rate of interest than the law allowed, but the creditor cannot, as a mere effect of that repeal, recover a higher rate of interest than he could lawfully, have contracted for.</p> <p>5. Usury—how availed of. It has been held, that since the act of 1857, usury need not be pleaded if the fact of usury appears by the declaration.</p> <p>6. So, in a suit to foreclose a mortgage, where the bill on its face discloses the fact that a higher rate of interest has been reserved in the contract than the law allowed, and the master computes the interest on that basis, the question of usury may be presented by exceptions to the master’s report, without having been raised by answer or plea.</p>