| Ill. | Nov 2, 1892
delivered the opinion of the Court:
There is, in the present record, so far as we are able to discover, no evidence from which the court could properly find that James A. Brown was ever divorced from Margaret Brown, his first wife. Ellen Spence, now known as Ellen Brown, testifies that, before she agreed to marry him, she received assurances from him that he had obtained a decree of divorce from some court in the State of Missouri. On that assurance she accompanied him to Missouri with the expectation of being married to him there, and she testifies that a short time before the marriage ceremony was pronounced, he handed to her a document which he told her was a divorce decree, ,and that she took.it and read it. She, however, is entirely unable to testify as to its contents, nor is there any other evidence as to the character or contents of said document, or whether it emanated from any court, or was authenticated in any manner as the record of a judicial proceeding. Here certainly is no evidence of a divorce decree, and there is an entire absence of any other competent evidence of any proceeding by which James A. Brown became freed from the bonds of his marriage with Margaret Brown.
That a marriage ceremony was pronounced by a justice of the peace of Jefferson Gity, Missouri, uniting James A. Brown in marriage with Ellen Spence is, as we think, shown by the evidence. She swears that such was the fact, and as the justice of the peace and all others, except her, who are shown to have been present at said ceremony are dead, her testimony is neither corroborated nor contradicted by that of any "other witness. No record evidence of said marriage is produced, but the evidence shows that at that time the laws of Missouri required no record of marriages to be preserved. Ellen Brown is a competent witness, and her uncontradicted evidence, though standing alone, may be regarded as sufficient to establish the fact to which she testifies. But if James A. Brown had not been divorced from his former wife, she being still living, said marriage was a nullity, and as there is no proof of such divorce, there is an entire failure to show that said marriage was valid, or to establish the title of Ellen Brown to the legal position and rights of widow of James A. Brown.
The evidence is clear and positive that, at the time Margaret Brown quit-claimed and released to Ellen Brown her rights and interest in the estate of James A. Brown, as his widow, the representation was made to her by the agent of Ellen Brown, that her husband, prior to his marriage to Ellen Brown, obtained a divorce from her in some court in the State of Missouri, and that the evidence of such divorce was at hand and could be produced, and that Margaret Brown believed and relied upon such representation, and was thereby induced to transfer all her interest in said estate to Ellen Brown for the sum of $1000. She now claims that such representation was false and fraudulent, and she therefore offers to restore the consideration paid her with interest, and asks to have said settlement rescinded and the instruments by which she transferred her interest in said estate to Ellen Brown cancelled, so as to restore her to her former rights as the widow of James A. Brown, and to be granted a decree assigning her dower in the lands of which her husband was seized during the period of her coverture.
Two answers are made to the cómplainant’s prayer for a rescission, 1. that the representation as to the existence of a divorce decree, whether true or false, was made by Ellen Brown in perfect good faith, and with a full belief on her part that it was true, and, 2. that even if said settlement was originally voidable at the instance of the complainant by reason of the alleged fraud, the complainant, by her delay in seeking a rescission, after acquiring knowledge of said fraud, has ratified the settlement, and should now be held to be barred of her right to rescind. As we view the case, it will be necessary for us to consider only the latter of these contentions.
The settlement was completed, and the. instruments by which it vv'as carried into effect were executed, January 21, 1886. The present suit was commenced by the filing of the original bill July 31, 1890. Up to that time the complainant had taken no steps to rescind, and had manifested no intention so to do. The hill as then filed made no mention of the _ settlement, asked no relief in respect to it, made no claim that any fraud had been practiced upon her, and no offer to restore-the consideration received. It is manifest that the filing of said bill was neither a rescission nor the manifestation of an intention to seek a rescission by aid of a court of equity.
The answer to said hill having set up the conveyances and releases executed by way of carrying into effect said settlement, the complainant, by leave of the court, amended her bill, such amendment being filed May 12, 1891, which was-five years and nearly four months after said settlement was-made, in which she, for the first time, complained that she-was induced to execute said conveyances and releases by fraud,, and sought to have them rescinded. So far as is shown, her election to rescind was then for the first time made.
The evidence as to the precise point of time at which she first received - knowledge of the falsity of the representations-as to the divorce decree is not altogether clear, but we think it was sufficient to justify the Circuit Court in finding that, as a matter of fact, she acquired knowledge, or such notice as was equivalent to knowledge, that no such decree was in existence, within a short time after the settlement was consummated. ' .
The evidence on this point is to be found mainly in the complainant’s own testimony. She swears that the representation made to her was, that the divorce was obtained at St, Joseph, Missouri, and that shortly after the settlement was made, she caused the records at St. Joseph to be examined for the purpose of ascertaining whether there was any. record there of the divorce proceedings, and that upon such examination no such record was found. When first on the stand, she stated that this examination was made within a week after the settlement, and she nowhere places it at a date later than the spring of 1886. She admits that the result of this examination caused her to suspect if not to believe that she had been imposed upon and deceived in the matter. Notwithstanding this, she received at maturity and retained the amounts of the notes due April 1 and July 1, 1886, the first being so received by her, probably, and the second certainly, after she had learned the result of the examination of said records.
She further testifies that, sometime after the settlement, she had a conversation, in Kansas City, with a lawyer who had for sometime previously been a resident of McDonough county, Illinois, and who told her that Ellen Brown’s attorneys had said to him, in substance, that they had no evidence whatever of the existence of any divorce decree, and that if they had had such evidence, they would not have given the complainant one cent. When first on the witness stand she fixed this conversation with said lawyer as having taken place four or five months after the settlement, and prior to the time she received payment of the last note, but on being recalled at a subsequent stage of the hearing, she stated that said conversation took place a year and half after the settlement, and long after both notes had been paid. It is to be observed, however, that she discloses no fact by which she can fix the date with any considerable degree of certainty, and when reexamined as to the precise date of said.conversation, her reasons for fixing the date as she then did are not altogether satisfactory. This change in her testimony, made after the materiality of the date had become manifest, is necessarily attended with some degree of suspicion, and we are unable to say that the circuit judge who saw her and heard her testify on both occasions, was not justified in believing that the date at first fixed by her was the true one, and in finding that said conversation took place in the spring or early summer of the year 1886, and before the note maturing July 1, 1886, was paid.
The only other source of information as to whether there had been a divorce to which she lays claim, consists of a remark by her son, made to her, as she says, in the fall of 1889, to the effect that there had been no divorce, but as it is not claimed, and as she had then no reason to suppose, that he had any special knowledge on the subject, that remark added little if anything to what she already well knew.
Taking her testimony most strongly in her own favor, and assuming that her conversation with the lawyer in Kansas City took place, as she stated when being examined the last time, a year and a half after the settlement was consummated, she was as well aware of the fraud practiced on her about four years before electing to rescind, as she was when she filed her amended bill. No excuse is shown for this long delay.
But the evidence warrants the conclusion that she was duly notified of the fraud before the contract was fully performed on the other side, and that with such notice, she elected to go on with it, and receive its full benefits. She at least was advised that no decree had been obtained at St. Joseph, and the representation made to her, as she swears, was the specific one that the divorce was procured at that place. According then to her own testimony as to which there is no discrepancy or dispute, she became thus early informed that the representation,, as she understood it, was false. After receiving this information, instead of electing to rescind her contract, "she proceeded to accept and appropriate its benefits, thus confirming and ratifying it.
The conversation with the Kansas city attorney, if it took place only four or five months after the settlement, as she testified when first examined, was only corroborative of what she had already learned, and gave her very satisfactory reasons for believing that the divorce story which bad been told her was a fiction. With such information it was her duty to elect, especially as the contract was then partly executory on the other side, whether she would abide by or repudiate it, and having made her election, she was not at liberty to recede from it.
A contract into which one party has been induced to enter by the fraud or false representation of the other is not void, but only voidable at the election of the defrauded party. He may, if he chooses, abide by the contract and hold the party guilty of the fraud to its performance. But he is at liberty to disaffirm and repudiate it, and if he seasonably elects so to do and takes the steps necessary to work a rescission, the contract is no longer binding, and he is remitted to the same position and legal rights which he held before the fraud was perpetrated. But he is not permitted to do both, and having once made his election, either to affirm the contract or to rescind it, he must abide by such election, and can not afterward change his position in that respect.
The authorities all agree that an election to rescind, if made at all, must be made within a reasonable time after the defrauded party has obtained knowledge of the fraud. As was said in Masson v. Bovet, 1 Denio, 69" date_filed="1845-05-15" court="None" case_name="Masson v. Bovet">1 Denio, 69 : “A person who is induced to part with his property on a fraudulent contract may, on discovering the fraud, avoid the contract and claim a return of what has been advanced upon it. Fraud destroys the contract ab initio, and the fraudulent purchaser has no title. But if the party defrauded would disaffirm the contract, he must do so at the earliest practicable moment after the discovery of the fraud. That is the time to make his election, and it must be done promptly and unreservedly. He must not hesitate; nor can he be allowed to deal with the subject matter of the contract and afterwards rescind it. The election is with him; but he may affirm or disaffirm the contract, but he can not do both; and if he concludes to abide by it, as upon the whole advantageous, he shall not afterwards be permitted to question its validity.”
In Hall v. Fullerton, 69 Ill., 448" date_filed="1873-09-15" court="Ill." case_name="Hall v. Fullerton">69 Ill., 448, a purchaser of land, a little more than five years after the contract of purchase was made, and a little more than four years after he was informed of the fraud complained of, sought to rescind the contract on the ground of false representations as to the situation and location of the land purchased, and this court, adopting the rule and substantially the language above quoted' from Masson v. Bovet, held that as the purchaser had made no attempt to rescind the contract until the day prior to filing his bill, he had slept too long on his rights, and could not then be permitted to rescind. To similar effect see, Williams v. Ketchum, 21 Wis. 432" date_filed="1867-01-15" court="Wis." case_name="Williams v. Ketchum">21 Wis. 432; Manahan v. Noyes, 52 N. H. 232; Pratt v. Fiske, 17 Cal. 380" date_filed="1861-07-01" court="Cal." case_name="Fratt v. Fiske & Loring">17 Cal. 380; Barfield v. Price, 40 id. 535; Hunt v. Hardwick, 68 Ga. 100" date_filed="1881-09-15" court="Ga." case_name="Hunt v. Hardwick & Co.">68 Ga. 100; Gates v. Bliss, 43 Vt. 299" date_filed="1871-01-15" court="Vt." case_name="Gates v. Bliss">43 Vt. 299; M. & C. R. R. Co. v. Neighbors, 51 Miss. 412" date_filed="1875-10-15" court="Miss." case_name="Memphis & Charleston Railroad v. Neighbors">51 Miss. 412; Gould v. Cayuga County National Bank, 86 N.Y. 75" date_filed="1881-10-04" court="NY" case_name="Gould v. . Cayuga County National Bank">86 N. Y. 75; Shaw v. Barnhart, 17 Ind. 183" date_filed="1861-11-30" court="Ind." case_name="Shaw v. Barnhart">17 Ind. 183; Fisher v. Wilson, 18 id. 133; Desha v. Robinson, 17 Ark. 228" date_filed="1856-01-15" court="Ark." case_name="Desha's Exrs. v. Robinson">17 Ark. 228; Cook v. Gilman, 34 N. H. 556; Lawrence v. Dale, 3 Johns. Ch. 23" date_filed="1817-10-01" court="None" case_name="Lawrence v. Dale">3 Johns. Ch. 23.
If we concur in the plaintiff’s contention that she had no satisfactory information of the falsity of the representation made to her until she had said conversation with the lawyer at Kansas City, and that said conversation took place a year and a half after the execution of the conveyances now sought to be rescinded, she even then slept on her rights almost four years before attempting to rescind, and during that time, Ellen Brown and her sons, relying on said conveyances, expended large sums of money by way of clearing the lands in question of the mortgage to the insurance company and various other incumbrances thereon. We think, under these circumstances, it is now too late for the complainant to be permitted to rescind.
But the decree of the Circuit Court rests upon the stronger ground of ratification. ■ The evidence, as has. already been shown, warrants the conclusion that the- complainant was notified of the falsity of said representation before the consideration for her quit-claim deeds had been fully paid. At that time one-half of said consideration or $500 was not yet due. With such notice, she received and afterward retained said $500, and her doing so was clearly a ratification. The contract being partly executory on the other side at the time she was advised of the'fraud, she was in duty bound to make her election at once, or at least before requiring further performance by the other party. She was not at liberty to insist upon the validity of the contract until fully performed, and then shift her position and rescind. Accepting the residue of the consideration with knowledge of the fraud was a ratification which precluded a subsequent rescission.
We are of the opinion that the decree is sustained by the evidence, and it will therefore be affirmed.
Decree affirmed.