216 Ill. 197 | Ill. | 1905
delivered the opinion of the court:
It is first insisted by appellant that appellee has not established the allegations of his bill by a preponderance of the evidence. .We have carefully read the evidence of both parties -as it appears in the record. It shows that Gotlieb Vollenweider, the father of appellee, at the time of his death was seventy-one years old. He had been married four times, and had only been married to appellant about four weeks prior to his death. He left the appellee, his only son, about fifty-five years old, and appellant, his widow, then about fifty years old, as his only heirs-at-law. The premises in question consisted of a lot 24 by 125 feet in dimensions, on which were located two brick fiat-buildings, variously estimated in value from $5000 to $10,000 and found by the decree to be of the value of $8000. The widow was appointed administratrix of the estate and her award was fixed at $1445. Various claims were allowed against the estate, aggregating about $2500, including the widow’s award. Appellee testified that on the day the deed was made appellant asked him to go down town with her to the- office of her attorney, a Mr. Tripp, which he did. No one was present in the office but the three persons named. Tripp told appellee that if they settled up the business they would not have to wait for the case to go through court and $500 or $600 would be saved. A paper was drawn up and Tripp told him to sign it. He could not read the English language and the paper was not read to him. After he signed it his acknowledgment was not taken, and he did not find out for over one year after-wards that he had signed away his rights to the property. He had'never received any part of the $500 consideration. There is also evidence tending to show that appellee was not experienced in business affairs, and was very much inclined to be shiftless and indolent, and was a person who could be easily overreached. The appellant flatly contradicted the testimony of appellee, and swore that the transaction was honest and straightforward and that no advantage was taken of appellee and there was no fraud practiced upon him in obtaining the deed. In this she was corroborated to some extent, but not altogether, by her attorney, Tripp. It is impossible to reconcile this evidence but it is apparent, even from appellant’s own testimony, that she obtained at least $2500 worth of property for $500, and if the evidence of appellee’s witness is to be believed she obtained $7500 worth of property for that sum. That fact, in itself, is evidence that appellee was overreached. But aside from this, the case was heard by the chancellor in open court. He saw the witnesses and heard them testify, and had the opportunity of observing their appearance and demeanor while testifying. We have held in many cases that under such circumstances the chancellor is better able to give to the evidence its proper weight than we are. The decree rendered protects the interest of appellant and is very liberal in that respect. She is given an accounting for all sums received and paid out by her since the death of her husband, and after the deed is set aside she will be placed in no worse position than she was before its execution. We are not disposed to reverse the decree upon the ground that it is not sustained by the evidence.
It is next insisted that the decree and finding of fact are entirely at variance with the allegations of the bill. In support of this contention it is urged that the bill specifically charges fraud to have been committed in the attorney’s office, which the decree does not find to be true, but finds, generally, that appellant used undue influence over appellee, and therefore there is a variance between the allegations of the bill and the decree. The decree does find that the consideration for the deed was inadequate and insufficient, and that the signature to the same was obtained by fraudulent means and .undue influence and was not the free and voluntary act of appellee. The gist of the' charge in the bill was that the deed was obtained by fraud and undue influence. We do not see how it can make any difference where the fraud was practiced if the deed was obtained by fraud, as alleged in the bill.. There is no substantial variance between the allegation of the bill and the decree.
It is next insisted that appellee has been guilty of such laches as ought to preclude him from a recovery. We have carefully examined the answer for any allegation charging him with laches and we find no such averment. The decree is also silent on that question. It is therefore apparent that the question was not raised in the .pleadings or the trial court asked to pass upon it. It cannot be raised for the first time in this court.
We find no reversible error in the record, and the decree of the circuit court will be affirmed.
, Decree affirmed.
