Wood v. Calland

Mr. Presiding Justice Sears delivered the opinion of the court. We are of opinion that the findings of the decree are supported by the evidence, in so far as they find that the assumption clause was inserted in the deed without knowledge of appellee, and that when the deed was sent by appellee’s son to the recorder, appellee was not aware that the clause had been interlined. The only question presented is whether, notwithstanding the facts established by this evidence, the appellee is barred from any relief by his own laches. The decree contains no finding as to when appellee first learned of the assumption clause in the deed. We regard the evidence as such as would warrant the chancellor in finding that there had been such laches as would defeat any relief. The evidence would have very amply sustained a finding by the chancellor that appellee learned of the assumption clause in the deed by which he held title to the property, as early as in December, 1892. Appellee states in his testimony upon the trial that he first knew of the clause in'the deed in 1895, but his testimony is not positive in form, and it is directly contradicted by his positive testimony given in the suit at law and introduced upon this trial by consent, to the effect that he did know of the clause in December, 1892, when he copied-it in making the deed to Mrs. Jenkins. It is scarcely possible that he could have copied the deed without noticing this clause. His letters tend to show that he knew of the clause and was aware of his liability therefrom arising. Yet he did nothing whatever to disaffirm his assumption of liability, according to the terms of the clause, until January 15, 1897, when the bill of complaint was filed in this cause— unless it may be said that he expressed such disavowal by his defense to the suit at law interposed in 1895. What the defense was as interposed by appellee in the suit at law can not be determined from the evidence as abstracted. But if it appeared that in 1895, by his defense in the suit at law, appellee had in effect disavowed the acceptance by him of the deed containing the clause, yet there would have intervened the period between December, 1892, and Hay, 1895, during which appellee, with knowledge, remained silent and permitted appellant Wood, as the owner of the mortgage claim, to rely upon this undertaking of appellee, as expressed in the assumption clause. A serious question as to laches of appellee which would bar relief would be presented by this state of facts. If, on the other hand, the court found that there was knowledge in December, 1892, and no disavowal of liability until the filing of the bill of complaint in 1897, the conclusion as to such laches would be almost unavoidable. Cox v. Montgomery, 36 Ill. 396; Hall v. Fullerton, 69 Ill. 448; Perry v. Pearson, 135 Ill. 218; Greenwood v. Fenn, 136 Ill. 146; Day v. The F. S. Investment Co., 153 Ill. 293; Sutter v. Rose, 169 Ill. 70; Morey v. Pierce, 14 Ill. App. 91. The rule announced by these decisions is that a party who claims to have been defrauded must disaffirm the contract at the earliest practicable moment after having discovered the fraud. In Sutter v. Rose, supra, this rule is applied to facts very similar to the facts of the case under consideration. The defense of laches of appellee was set up by the amended answer of appellant. There was evidence strongly tending to show such laches. The decree fails to find when appellee first had knowledge of the assumption clause. The evidence fails to disclose, and the decree does not find, whether there was disaffirmance of the contract in 1895, or for the first time in 1897. We are of opinion that upon this state of the record the decree must be reversed and the cause remanded.