St. Clair County IL Archives Court.....Bryan, Vs. Primm 1819-31
************************************************
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 June 4, 2008, 10:51 pm

Source: Reports Of Cases Illinois
Written: 1819-31

DECEMBER TERM, 1822.

Bryan, Morrison, and Davidson, Appellants, v. John Primm, Appellee.

APPEAL FROM ST. CLAIR.

A suppressio veri in relation to any important fact affords ground for the 
interference of a court of equity to annul the contract. (1)

The assignee of a note, after it becomes due, takes it subject to all the 
equity existing between the original parties to it.

Notice of an equity, to an agent, is notice to his principal.

Though a bill fur an injunction does not pray that the money be refunded, yet 
such relief can be granted, and a decree therefor is not erroneous.

Opinion of the Court by Chief Justice Thomas Reynolds. 

This was a suit in chancery, commenced by Primm, for the purpose of setting 
aside a contract made with James W. Davidson and wife, and to enjoin a 
judgment obtained against himself by Bryan and Morrison upon a note executed 
under said contract. The bill alleges that sometime in July, 1808, Primm 
purchased of said Davidson and wife a certain tract of land lying in St. Clair 
County, which land descended to the wife of said Davidson as heir at law of 
one Peter Zip, deceased; that said Davidson and wife were to execute to him 
such deeds as would completely vest in him the same title which the said Zip, 
desceased, had in the premises. That, accordingly, said Davidson and wife, 
together with one Jane Everett, who claimed an interest in the premises, did 
execute to him a deed for said land — that in consideration of such purchase, 
he agreed to pay the said Davidson the sum of eight hundred dollars, for the 
payment of which, he executed his note to the said Jane Everett for the sum of 
two hundred and sixty-six dollars; and for the balance of said purchase money, 
beside a small part paid, he executed his notes to the said Davidson. The bill 
further shows that, at the time of making said contract, and of the execution 
of the deed aforesaid, the said wife of Davidson, who was the sole heir to the 
said Zip, was under the age of twenty-one years, and that since she has 
arrived at full age, has refused to execute a deed for said land, without the 
payment of an additional sum.

It is further shown, that after the note executed to the said Jane Everett 
became due, it was assigned to Bryan and Morrison, who purchased the same 
through their agent, William Atchison,—that said Atchison had a full knowledge 
of all the circumstances under which said note was executed. The said Bryan 
and Morrison commenced suit upon said note and recovered judgment.

The prayer of the bill is to perpetually enjoin said judgment and cancel the 
notes given pursuant to said purchase. An injunction to stay the collection of 
said judgment was granted by the judge in vacation. The bill as to Davidson 
and wife was taken pro confesso. Bryan and Morrison answered, setting forth 
their ignorance of all the circumstances under which said note was executed—
that they are the innocent purchasers of said note—deny knowing that the r 
agent had any knowledge of said circumstances, but do not deny that their 
agent possessed such information. During the progress of the suit in the court 
below, the injunction was dissolved and the said Bryan and Morrison proceeded 
and collected their judgment. Upon the final hearing of the cause, the court 
below decreed that the notes should be cancelled, and that Bryan and Morrison 
refund to the said Primm the money so collected. To reverse this decree this 
appeal is prosecuted. We will first consider whether the bill contains equity, 
if so, whether that equity attaches upon the note in the hands of Bryan and 
Morrison.

The knowledge by Davidson of his wife's being under age at the time of 
executing the conveyance, and not disclosing that fact to Primm, is surely a 
suppression of the truth; add to this the fact of his wile's disagreement to 
the contract after she arrived at full age, and I think it will not be 
contended that the bill contains no equity. Between Primm, then, and Davidson 
and wife, the decree ought to be affirmed. (1)

The next inquiry is, does this equity extend to Bryan and Morrison. They do 
not deny that Atchison, their agent, had knowledge of Primm's equity. This of 
itself would be notice to them. (1)

But regardless of this fact, the note was assigned to Bryan and Morrison after 
it became due. Under this circumstance, they took it subject to all the equity 
which attached in the hands of the original payee.* It was contended in the 
argument by the counsel for the plaintiff, that the court erred in decreeing 
the money to be refunded by Bryan and Morrison, when the bill did not pray for 
such relief.

It will be remembered, that the prayer, as to them, is for a perpetual 
injunction, that after the injunction was dissolved, they proceeded and 
collected their judgment. Could not the court then decree the money to be 
refunded? We have no hesitation in saying they could. Otherwise, the 
complainant would be turned round and compelled to seek his redress by an 
action at law. If the injunction had been made perpetual, without this 
additional relief, the same absurdity would have followed. (2) Let the 
judgment of the court below be affirmed and the defendant recover his costs. 
(a)

Judgment affirmed.

-------------------
(1) In a sale of land by a guardian, a mere suppressio veri, does not 
constitute fraud in the sale; but if there was a suggestio falsi the question 
would be different. Mason v. Wait et al., 4 Scam., 127.

Fraud may consist as well in a suppressio veri as in a suggestio falsi; for in 
either case, it may operate to the injury of the innocent party. Lockridge v. 
Foster et al., 4 Scam., 569.

These decisions of our court are apparently conflicting, and, to a casual 
reader, might be calculated to mislead. Indeed the cases of Bryan & Morrison 
v. Primm, and Lockridge v. Foster et al., do not justify the syllabus of the 
reporter. In each of those cases there was a positive false affirmation which 
authorized the decision of the court; and in the last case the language of the 
opinion was as stated by the reporter; but it was not called for by the case—
was a mere dictum of the court--and with all due deference to the very able 
judge who delivered the opinion, is not, we think, warranted by the law. How 
far a person is bound, when dealing with another, to communicate facts purely 
within his own knowledge, is a question about which great diversity of opinion 
has existed. Cicero held that a man was bound to communicate every fact within 
his knowledge, which was unknown to the one with whom he was dealing, and 
which might operate on the other in making the contract. Some modern jurists 
and moralists of eminence have adopted this doctrine. Although, this may be 
and is true in morals, yet the courts of America have not seen fit to adopt so 
rigid a rule. Thus Chancellor Kent says: "From this and other cases it would 
appear that human laws are not so perfect as the dictates of conscience; and 
the sphere of morality is more enlarged than the limits of civil jurisdiction. 
There are many duties that belong to the class of imperfect obligations, which 
are binding on conscience, but which human laws do not, and can not undertake 
directly to enforce." 2 Kent's Comm., p. 490.

To constitute a suppressio veri such a fraud as will authorize a court to 
interfere and declare the contract void, there must be something more than a 
failure to communicate facts within the knowledge of the party--there must be 
concealment. Such concealment may be by witholding the information when asked 
for it, or by making use of some device to mislead. Or there may be cases in 
which such suppression would be held to be a fraud when no act was done by the 
party chargeable with it; such us where from the peculiar situation of the 
parties-—"when the person stands in the relation of trustee or quasi trustee 
to another, as agent, factor, steward, attorney, or the like, if he would 
purchase of his principal or employer, any property entrusted to his care, he 
must deal with the utmost fairness, and conceal nothing within his knowledge 
which may affect the price or value." 2 Kent's Comm., p. 490. Or where one 
party possesses a knowledge of facts which, from the situation of the 
property, the other can not know, a suppression of such facts would render a 
contract invalid.

The conclusion to which we arrive, is, that unless the case comes within some 
of the exceptions arising from the peculiar situation of the parties, a mere 
failure to communicate facts within the knowledge of one party and unknown to 
the other, does not make it fraudulent; in other words, the party must do some 
act to mislead. A late writer has so fully expressed our views on this 
subject, that we avail ourselves of the following extract from his truly 
valuable work: "If tho seller knows of a defect in his goods which the buyer 
does not know, and if he had known would not have bought the goods, and the 
seller is silent, and only silent, his silence is nevertheless a moral fraud, 
and ought perhaps on moral grounds to avoid the transaction. But this moral 
fraud has not yet grown into a legal fraud. In cases of this kind there may be 
circumstances which cause this moral fraud to be a legal fraud, and give the 
buyer his action on the implied warranty, or on the deceit. And if the seller 
be not silent, but produce the sale by means of false representations, then 
the rule of caveat emptor does not apply, and the seller is answerable for his 
fraud. But the weight of authority requires that this should be active fraud. 
The common law does not oblige a seller to disclose all that he knows, which 
lessens the value of the property he would sell. He may be silent, leaving the 
purchaser to inquire and examine for himself, or to require a warranty. He may 
be silent, and be safe; but if he be more than silent—if by acts and certainly 
if by words, he leads the buyer astray, inducing him to suppose that he buys 
with warranty, or otherwise preventing his examination or inqury, this becomes 
a fraud of which the law will take cognizance. The distinction seems to be—and 
it is grounded upon the apparent necessity of leaving men to take some care of 
themselves in their business transactions—the seller may let the buyer cheat 
himself ad libitum, but must not actively assist him in cheating himself.' 1 
Parsons on Contr., 461. See also 1 Story's Eq., Sec. 203-8.

A mere false representation does not constitute fraud. The party must know the 
representation to be false, and must use some means to deceive and circumvent. 
Sims v. Klein, post.

Fraud can not exist without an intention to deceive. Miller v. Howell, 1 
Scam., 499.

Where a party, by the use of fraud and deception, obtains a conveyance, the 
parties who have made it may disregard it and convey to a third party, who may 
establish the fraud in equity, and be protected in his rights. Whitney v. 
Roberts, 22 Ill., 381. 

(1) The same defense may be set up against the assignee of a note, which was 
transferred after its maturity, as could be made against the original payee. 
Tyler v. Young et al, 2 Scam., 444; Sargeant v. Kellogg et al., 5 Gilm., 273; 
Walter v. Kirk et al. 14 Ill., 55. And so is the statute. Purple's statutes, 
p. 772, Sec. 8. Scates' Comp., p. 292.

An assignee of a note takes it subject to any defense existing between the 
maker and the payee which appears on the face of the note, or of which he had 
notice at the time of the assignment; and in such case it is immaterial 
whether the note was assigned before or after it became due. Frink et al. v. 
Ryan, 3 Scam., 324.

(1) The same is held in Rector v. Rector et al. 3 Gilm, 119, and Doyle et al. 
v. Teas et al. 4 Scam., 250.

* Laws of 1819, page 1.

(2) In Isaacs v. Steele, 3 Scam., 103, the court said they had no doubt that 
under the prayer for general relief, a court of chancery may decree that which 
is not specifically prayed for, and grant more than is asked. And again in 
Manchester et al. v. McKee, 4 Gilm., 519. "The general prayer is sufficient to 
authorize the granting of any relief which the statement of the bill would 
warrant." See also Alexander et al. v. Tams et al., 13 Ill., 225. Vansant v. 
Allmon, 23 Ill., 30.

(a) The complainant is not confined to the particular relief prayed for in the 
bill, but under the general prayer, is entitled to such a decree as the nature 
of the case may require. Beebe and others v. Bank of New York, 1 Johns. Rep., 
529.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

File at: http://files.usgwarchives.net/il/stclair/court/bryan217gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 13.4 Kb