Tone v. Wilson

Citations

• 81 Ill. 529

Syllabus

<p>1. Covenants—of seizin and right to convey. The covenants of seizin and of good right to convey, in a conveyance of land, are in presentí, and do not run with the land; and if the grantor, at the time, has no title to a portion of the premises, the grantee will have a right of action immediately to recover the proportion of the purchase money which the interest not conveyed bears to the portion to which the title passed. He is not bound to wait until evicted.</p> <p>2. Same — damages for breach, on foreclosure. On bill to foreclose a mortgage given to secure the payment of the purchase money of land, where the land was conveyed with covenants of seizin and right to convey, and the grantor did not own the entire title, the defendant, without an eviction, may interpose, in defense, the failure of consideration, or recoup the damages, in his answer, as to the interest not conveyed.</p> <p>3. Chancery jurisdiction—relief against decree. As a general rule, where a party has a defense, and fails or refuses to make it in a proceeding where it is allowed, equity will not relieve, and allow it against the recovery. Ignorance of the law, or advice of counsel that the defense is unavailing, furnishes no excuse for not interposing the defense, and will not justify equitable interposition.</p> <p>4. Fraud—representations must be known to be false. To make false representations fraudulent, the party making them must have known them to be false.</p>