McCarty v. Marlette , 80 Ill. 526 ( 1875 )

Mr. Justice Bbeese

delivered the opinion of the Court:

This is an appeal from the chancery side of the circuit court of Kane county, in proceedings therein commenced by Samuel McCarty against Gideon Marlette and others, praying an injunction and for general relief, alleging fraud by defendants in a sale of a lot of land in the town of Aurora, the fraud consisting in the transfer, by delivery, of certain notes by defendants to complainant, as the purchase price of the lot, and praying further that the sale be set aside.

The court dismissed the bill, and on this appeal by complainant we have considered it necessary to notice only the defense set up by the defendants in their answer to the bill. That defense was laches on the part of complainant.

It appears the sale of the lot was made to defendant Gideon Marlette by complainant in August, 1858, and the notes of Abram Davis delivered at the same time in full payment thereof. When the first note fell due, some time in the latter part of 1858, complainant called on the maker, who resided at Chicago, and demanded payment, which was refused. When the second note became due, some three months thereafter, he again called on the maker, who refused payment on the ground that he' had no property. At this interview Davis told complainant where Gideon Marlette lived.

It was then in the power of complainant to commence proceedings against Marlette to cancel the sale, as constructive notice to him could have been had by publication, and Marlette placed in statu quo by a surrender to him of the notes.

This, complainant did not do, delaying to commence proceedings for such purpose until 1865, nearly six years thereafter, and in the meantime suing Davis upon the notes to judgment. The fact of Davis’ inability to pay the notes was as apparent in 1858 as it was when this action was commenced, and the doctrine is well established in this court, that unreasonable delay m commencing proceedings to rescind a contract on the ground of fraud, will prevent relief in a court of equity. Cox v. Montgomery, 36 Ill. 396.

The excuse for' the delay, that complainant did not know where to find Marietta, so that an action might be brought against him so soon as Davis’ inability to pay the notes was discovered, does not seem to be valid, as the fact of his residence at Syracuse, in the State of JSTew York, was communicated to complainant by Davis in the fall of 1858.

After the discovery of the alleged fraud in passing these notes upon him, complainant affirmed the contract by suing the notes. He should at once have commenced proceedings to set aside the contract.

We think the laohes of complainant was inexcusable, and the circuit court decided properly in dismissing the bill, and we affirm the decree.

Deoree affirmed.