Ogden v. Larrabee

Citations

• 57 Ill. 389

Syllabus

<p>1. Vendor and purchaser—rescission by the former—what constitutes— dedarration of forfeiture. The sale of land to a third person by the vendor, during the existence of a prior contract of sale, will operate as a rescission of such prior contract, and that fact of itself will amount to a declaration of forfeiture thereof.</p> <p>2. Same—recovery of purchase money after rescission. A vendor can not rescind an executory contract for the sale of land, and afterwards proceed to collect the purchase money.</p> <p>3. Fraud in obtaining a judgment—remedy in chancery. A court of chancery has power to annul and cancel a judgment at law if it has been obtained by fraud.</p> <p>4 Where a vendor of land sold the same to another, thereby declaring a forfeiture of the prior contract, and also putting it out of his power to convey according to its terms, and afterwards obtained an allowance against the estate of the purchaser under such prior contract, for the unpaid purchase money, it was held, the procurement of the allowance under such circumstances was fraudulent in law, and a court of chancery should set aside and cancel the same.</p> <p>5. Tbtjstee—what constitutes. A vendpr of land executed a contract in writing, through his attorney in fact, for the conveyance thereof upon the payment of the purchase money at the times and in the manner therein specified. Subsequently, the purchaser, to secure a balance due upon the purchase monejr, assigned to such attorney in fact certain notes and mortgages, with “ full power to settle, compromise or exchange the aforesaid mortgages and notes for other property or demands, taking part of the amount due in lieu of a larger part or the whole as he should think best in his judgment, and to cancel and discharge such mortgages from the record for such consideration as he might think proper, ” and to pay the proceeds to the vendor in satisfaction of his claim, and the residue to such assignor, the purchaser, or his heirs or assigns: Held, t