Cox v. Montgomery

43 Ill. 110

• Court: Illinois Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Per Curiam :

When this case was formerly before the court, as reported in 36 Ill. 396, we held Cox had committed a fraud on Montgomery in the exchange of lands, which entitled the latter to a rescission of the contract, if he could explain the apparent delay in commencing proceedings for that purpose, and we remanded the case to allow such explanation to be made. It now appears, that Montgomery filed his first bill on the 2d of May, 1863, and that bill having been dismissed on the 27th of November, 1863, the present bill was filed on that day. Less than ten months intervened between the time when Montgomery first acquired knowledge of the fraud and the institution of a suit, and that delay is explained by the fact, that he was advised by counsel to postpone the commencement of a suit until the decision of another then pending. We are of opinion this was not such laches as should bar his relief, and the Circuit Court thus held.

It is urged, however, by the appellant, that he was entitled to payment for his improvements, which appear, by the record, to have been worth about one hundred and twenty-five dollars, as also to interest on the $300 and taxes. If this was an error, it is one which has worked the appellant no injury, and for which we do not deem it necessary to remand this cause, since, if such an account had been taken,'the appellee would have been entitled to claim rents and profits, and it is manifest, from the record before us, that these would more than overbalance the claims of the appellant. The decree is affirmed.

Deoree affirmed.