Delaney v. McNeil & Higgins Co. , 1915 Ill. App. LEXIS 387 ( 1915 )

Mr. Justice O’Connor

delivered the opinion of the court.

2. Frauds, statute of, § 2^*—when Statute of Frauds not applicable to instrument in writing. Where the instrument sought to be enforced is in writing the Statute of Frauds has no application, though such instrument may have been given in pursuance of an oral agreement to pay the debt of another. 3. Fraud, § 115^*—when evidence insufficient to establish fraud. In a bill seeking relief against a note and trust deed on the ground of fraud, a finding that there was no fraud held sustained by the evidence. 4. Appeal and error, § 1395^*—when findings of chancellor will not be disturbed. Where a bill seeks relief against a note and trust deed on the ground of fraud and the evidence as to fraud is conflicting, the finding of the chancellor, after seeing and hearing the witnesses, that the allegation of fraud was not sustained by the evidence will not be set aside by a court of review unless manifestly against the weight of the evidence. 5. Fraud, § 112^*—sufficiency of evidence to establish fraud. Where fraud is relied on it must be proved by clear and convincing evidence. 6. Fraud, § 87^*—not presumed. Fraud is never presumed. 7. Cancellation of instruments, § 37^*—when trust deed will not be canceled, but enforced on cross-bill. Where a bill sought cancellation of a note and trust deed and where a cross-bill prayed the enforcement of the trust deed, a decree that unless complainant within twenty days paid the amount of the note secured by the trust deed sought to be enforced defendant might go to hearing on its cross-bill, held not inequitable although the debt for which such note was given was in part the debt of another, it appearing that complainant had received a gift of such other person’s business, which she thereafter carried on for her own benefit, and it also appearing that in consideration of executing the note complainant had been given further time in which to make payment, and that further credit had also been extended to her in consideration thereof.