Jevne & Almini v. Osgood

Citations

• 57 Ill. 340

Syllabus

<p>1. Vehdob ahd Purchaser—rescission of contract by parol. Where the parties to a written contract for the sale of land agree by parol to rescind the same, one of the conditions of such agreement being that the vendee shall return to the vendor the written contract to convey, it is held, that although the vendee perfora! all the other conditions, if he refuse to surrender the written contract lie thereby keeps it alive, and refusing to release the vendor from his obligation to convey, he continues his own liability to pay the purchase money.</p> <p>2. The verbal agreement to cancel could be set up as a defense to a bill by the vendor, to compel a surrender of the written contract, as being within the statute of frauds. He is not required, in such case, to abandon his claim for the purchase money and run the risk of having to perform his. agreement to convey.</p> <p>3. And even thotigk the vendor could, under the terms of the written contract, declare a forfeiture on account of default on the part of the vendee, and thus terminate his own liability, he would not be bound to do so under such circumstances, but might still hold the vendee liable.</p> <p>4. Jurisdiction in chancery—defense at lam. Where a purchaser of land has an opportunity to defend a suit at law brought to recover the purchase money, on the ground that the contract of sale has been rescinded, but omits to interpose such defense, he will be deemed to have waived it, and can not, after permitting a judgment to be recovered against him, come into a court of chancery and set up the fact of such rescission as a gfoUnd for an injunction to restrain the collection of the judgment.</p> <p>5. A party failing to make a defense at law, will not be permitted to come into equity and have the subject matter of such defense allowed, unless he can show he was prevented from making his defense at law by accident, fraud or mistake.</p> <p>6. Sams—to enforce a judgment. A vendor of land having recovered a judgment at