Hall v. Fullerton

Citations

• 69 Ill. 448

Syllabus

<p>1. Fraudulent representations—right of rescission for. A person who is induced to part with his property on a fraudulent contract, on discovering the fraud, may avoid the contract and claim a return of what has been advanced upon it. He has his election to affirm or disaffirm the contract. But if he would disaffirm it, he must do so at the earliest practicable moment after discovery of the fraud.</p> <p>2. Same—rescission not allowed after unreasonable delay. Where lands were exchanged in September, 1859, and one of the parties sought to avoid the contract on the ground of fraudulent representations as to the locality, value, etc., of the land taken hy him, and it appeared that he learned of the falsity of the representations within a year after the exchange, and that lie never expressed any dissatisfaction or attempted to rescind the contract until the day before filing his bill, which was on January 24th, 1865: Held,, that owing to the unreasonable delay in filing his bill, it was properly dismissed.</p> <p>3. Chancery practice—when laches must be insisted, on in answer. The rule requiring a defendant in a chancery suit to set up and insist on the complainant’s laches in filing his bill, is for the purpose of enabling the complainant to amend his bill and account for the delay, so as to admit proof to meet the objection, and will not be extended to a case where the hill attempts to account for the delay, which is not sustained by the proof. In the latter case the objection maybe made without first insisting on it in the answer.</p> <p>4. Homestead—waiver by abandonment in favor of grantee. Although a deed for premises occupied by the grantor as a homestead, may contain no release of the homestead, yet if he voluntarily abandons the premises and permits his grantee to enter and hold the same, this will amount to a waiver of the right. And such waiver can not be avoided for the fraud of the grantee, after such a delay that a rescission of the contract is denied.<