Peoria County IL Archives Court.....Ballance, V Tesson 1850 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: 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the ancient village of Peoria, as was confirmed to the settlers and inhabitants by the act of congress of 1823, was withdrawn from from sale, and no title, as against the claimants and their legal representatives, could be acquired by pre-emption.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. File at: http://files.usgwarchives.net/il/peoria/court/ballance142gwl.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 6.3 Kb