Thomas v. Coultas

Citations

• 76 Ill. 493

Syllabus

<p>1. Chancery practice—relieving against mistake in pleadings. While, in cases where the bill is sworn to, the courts always act with great caution in permitting the complainant to amend the same, and make repugnant allegations, and to prove them, and have relief thereon, yet such a practice is always allowed to prevent the failure of justice, on a proper showing. Where it is manifest the complainant is honestly mistaken as to facts charged in his bill, it may be allowed.</p> <p>2. Where a husband and wife file a bill to rescind a contract for the exchange of the wife’s real estate for lands of the defendant, on the ground of fraud, and for injunction, which was sworn to by the husband, and after-wards the' complainants asked to be relieved from certain statements in the bill as to the terms of the contract, and to amend the same by stating the contract correctly, and it was shown that they were denied the privilege of examining the contract until obtained under rule of court, the same not having been recorded, which was allowed: Held, that there was no error in relieving from the mistake and allowing the amendment, as the wife ought not to lose her rights because her husband, acting as her agent, did not state the contract correctly.</p> <p>3. Fraud—rescission of contract for exchange of lands. Where the complainants exchanged a house and lot for defendant’s farm, which he represented as incumbered by a mortgage of $2500, and which the complainants were to assume, and pay the defendant §700, and convey to him also a half section of land in Kansas, and it appeared that there were judgment liens upon the farm to the amount of $1300, and that the defendant owned only five-sixths of the farm, the other one-sixth being outstanding, all of which the defendant knew, but concealed the fact from the complainants: Held, this was such a fraud as authorized the complainants to rescind the agreement upon discovery of the fraud.</p> <p>4. Tender—not necessary to a rescission fo