Peoria County IL Archives Court.....Ballance, V Tesson 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 24, 2008, 6:55 pm

Source: Records Of Cases Illinois
Written: 1850

Charles Ballance, appellant, v. Edward P. Tesson et al., appellees.

Appeal from Peoria.

So much of the land, within the ancient village of Peoria, as was confirmed to 
the settlers and inhabitants by the act of congress of 1823, was withdrawn 
from from sale, and no title, as against the claimants and their legal 
representatives, could be acquired by pre-emption.

The lands covered by the French claims at Peoria, were taxable in 1815.

The title to the French claims, at Peoria, was vested in the claimants on the 
approval of the survey, in September, 1840. The government may make a perfect 
grant, without the issuing of a patent or any other evidence of title. (a) 

An act of congress containing provisions clearly indicating an intention to 
pass the fee unconditionally and absolutely, operates ipso facto to vest the 
title in the grantee.

Defendant then called Henry Deuchart, who testified that he was present at the 
giving of the note. That the note was given for a span of horses, wagon and 
harness, sold by the plaintiff to defendant. That during the negotiation for 
the sale, nothing was said about the ownership of the property. This was in 
the evening. The next day, at three or four o'clock in the afternoon, 
defendant came to the bakery of the plaintiff, with the team, and told witness 
he had brought back the team. Witness asked "what team?" Defendant said, "the 
team you sold me." Witness replied, "I sold you no team. I have nothing to do 
with it." The plaintiff was not present at that time. Defendant then hitched 
the team to a post in front of the residence of Mr. Tyler, a neighbor of 
plaintiff. The place where the team was hitched, was as convenient a place to 
hitch a team as any in vicinity of plaintiff's bakery, and on the evening of 
that day witness communicated the fact that the team had been brought back to 
the plaintiff. Conrad Dash had those horses and wagon in his possession, 
claiming ownership prior to, and up to the time of his death. On cross-
examination, witness stated that when the team was brought back by defendant, 
as above stated, witness was casually in the bakery of plaintiff, and was not 
employed by, or authorized to do business for plaintiff, and when the team was 
so returned, one of the horses was entirely ruined and spoiled by having one 
of his legs corked, and the cord badly cut.

It was admitted that no letters of administration had been issued on the 
estate of Conrad Dash.

Glover & Cook, for plaintiff in error:

There was no fraud; there might have been an implied warranty or title, but 
the plea sets up fraud and not warranty, and the allegatee and probatee must 
agree: 24 Wend., 102; 19 John. R., 77; Stanly v. Norris, 4 Blackford, 353; 
Thompson v. Ashton, 14 J. R., 317; Evertson's Ex. v. Mills, 6 J. R., 138. 
There was no return of the property: Norton v. Young, 1 Greenleaf, 30; Coxe, 
174; 10 East, 101; 18 Conn, 18; 15 Wend., 638. The plaintiff was not bound to 
take the property injured in value: 23 Pick., 283; 1 Denio, 69.

E. S. Leland, for defendant in error.

Treat, C. J. A party cannot rescind a contract of sale, and at the same time 
retain the consideration he has received. He cannot affirm the contract as to 
part, and avoid the residue, but must rescind it in toto. He must put the 
other party in as good a condition as he was before the sale, by a return of 
the property purchased. There may be an exception where the subject matter of 
the sale is entirely worthless. But if it is of any benefit to the seller, the 
purchaser must restore it before he can put an end to the contract. In this 
case the defendant rested his defense solely on the ground that there was 
fraud in the sale, and that he had disaffirmed the contract by restoring the 
property. The proof failed to show that it was returned. The defendant called 
at the plaintiff's shop and stated to a person, casually there, that he had 
brought back the team, and then fastened it in the vicinity. He did not 
declare the purpose for which it was brought back, or for whom it was 
intended. The plaintiff was soon after informed that the team was there, but 
he was not apprised of the purpose for which it was left. He was not even 
notified that the defendant was dissatisfied with his purchase. It does not 
appear that he ever took charge of the property, or attempted to exercise the 
least control over it. The defendant should have tendered the property to the 
plaintiff or his agent, and at the same time made known his object in so 
doing. A tender is stricti juris, and ought to be made out clearly. But if 
there was a tender of the property, the plaintiff was under no obligations to 
receive it. It was not in the condition in which the defendant received it. He 
did not offer to place the plaintiff in as good a condition as he was before 
he parted with the property. One of the horses had in the meantime become 
valueless. On either ground, the verdict was unauthorized, and a new trial 
should have been granted. 

The judgment is reversed, and the cause remanded.

Judgment reversed.

----------------------
(a) Hall v. Jarvis, 65 Ill., 302, accord. But if anything remains to be done 
by grantor or grantee to consummate the grant, after the passage of the law, 
it will not take affect and vest the title until such act has been performed: 
Thompson v. Prince, 67 Ill., 281.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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