after the termination of his lease by death of the dowress. The contract was broken by the death of Louisa A. Hoagland, because her title Appeal from the Appellate Court for the expired with her life, and this being so, the Third District; heard in that court on ap- right of Crum to оссиру ceased, and peal from the Circuit Court of Menard neither the heirs of Martin Hoagland, decounty: the Hon CYRUS EPLER, Judge, ceased, nor the personal representative of presiding. Messrs. BLANE & MCNEELY, the lessor had any right of recovery, Brudell for the appellants. v. Roberts, 2 Wils. 143; Hammond on Par The rents for the year ending on March ties, 157; William Clune's Case, 10 Coke, first, 1882, were certainly due to somebody. 127; Paget v. Gee, Ambl. 198; Jenner v. These rents, falling due after the death of Morgan, 1 P. Wms. 392; Edwards v. the lessor, could not go to her personal re- Countess of Warwick, 2 Id. 176; Hay v. presentatives, nor could such rents go to Palmer, 3 Id. 502. the personal repsentatives of Martin Hoagland, late owner of the fee. Rent falling due after the death of the lessor is a chattel real and descends with the land to the heirs, and not to the executor or administrator: Green v. Massie, 13 Ill. p. 363; Grosby v. Loop, 13 Ill. p. 626; Foltz v, Sprouse, 17 Ill. p. 487; Dixon v. Nicholls 39 Ill. p. 372. Accruing rents for the use and occupation of land, and which do not become due till after death of the lessor, is a chattel real which descends to the owner of the rever sion. Messrs. MORRISON & WHITLOCK, for the appellee. Then if any rent be recoverable for the time from March 1st, to November, 1881, the right would be in Fannie M. Nance, administratrix, with the will annexed, and not in the heirs of Martin Hoagland, deceased, the plaintiffs in error in this case. The right being in her, as such administratrix with the will annexed, her release of the errors as set forth in the plea filed is a good reply to the assignment of errors: Hinrichsen v. Van Winkle, 21 Ill. P. 274. If one lease lands for a term of years, rendering rent annually, and the tenant be evicted between rent days, the lessor shall have no rent for that year: Countess of Pymouth v. Throckmorton, 1 Salk. 65. Rent will not be apportioned as to time, where the lease is terminated by the expiration of the title of the lessor; Taylor, Land. and Ten., Sect. 387; Perry v. Aldrich, supra; Wood v. Partidge, 11 Mass. 488; Fishburg Man. Co. v. Melvin, 15 Mass. 270. This is because the contract is an entire thing. The contract was first broken by the lessor by the failure of the title, and hence the right to occupy ceased before the end of the year. Where the landlord terminates the lease during the year, although it be done under a provision in the lease giving him that right, he can not recover rent for any part of the year: Zule v. Zule, 24 Wend. 76; Same Case, 35 Amer. Deci, 600; Nellis v. Lathrop, 34 Amer. Deci. 284; Wood on Landlord and Tenant, Sect. 476; 1 Williams on Executors, side p. 703, et sequi and cases sited. Mr. T. W. MCNEELY and Mr. S. H. BLANE, in reply. But we say that no rent was due to any one; none can be recovered for the year 1881. The rent began March 1, 1881, and the lease was for one year; the life Contended that the rule of the common estate of the lessor fell in November of law on this subject is not adopted, being that year. Where no time is fixed for inapplicable to the habits and conditions of the payment of rent, the rent is due at our society, and as not being in harmony the end of the year: Perry v. Aldrich, 13 with the genius and objects of our instituN. H. R. 343; Same Case, 38 American DeBoyer v. Sweet, 3 Scam. 130. cisions, 494. tions: The statute of this State was made for such a case as this, and gives a right of place of beginning is given with the corners action: R. S. 1883, Ch. 80. or courses and distances, the latter part will control as showing the premises intended to be conveyed. 44—40.—Dow Smith v. J. G. Harris et al. (Opinion PER CURIAM, dismissing.) I. 3. A deed described the land as being FILED AT SPRINGFIELD, JANUARY 31, 1885, "thirty-four and sixty-nine one hundredths WRIT OF ERROR-To Appellate Court acres of the south side of the southeast when judgment is under $1000.-In an quarter of section fourteen, in township action to recover damages growing out of twelve north, of range nine east, beginning alleged negligence, a judgment of the at the intermediate corner on the east Appellate Court affirming a judgment of the boundary line of the said section, running trial court in favor of the defendant, is final, thence south 83 deg. 40 min. west, seventyand unless the judges of the Appellate Court nine poles, to a stake on the road; thence make a certificate that the cause involves north 60 deg. 30 min. west, sixty-nine and some question of law, which, on account of one quarter poles to a stake; thence north principal and collateral interests, should be 84 degrees east seventy-nine and 4-10 poles passed upon by this court to review the to a stake in the section line; thence south judgment of the Appellate Court. 6 deg. 30 min. east sixty-eight and three Writ of error to the Appellate Court, for quarter poles, to the place of beginning:" the Third District; heard in that court on Held, that the description of the land was writ of error to the Circut Court of Coles, sufficiently certain. The commencement is county; the Hon. C. B. SMITH, Judge, the government corner on the east line of presiding. the section between the northeast and south in error. Messrs. CRAIG & CRAIG, for the plaintiff east quarters of section 14, and the southeast and north lines of the tract are plain, and the words "60° 30' west," in the description of the west line being senseless, must be rejected as surplusage. Messrs. STEVENS, LEE & HORTON, and Messrs. WILEY & NEAL, for the defendant in error, Beck. LIMITATION-Possession must be adverse.-Possession of land, however long continued, unless adverse, will not defeat a recovery by the owner; and so the possession of land by one tenant in common, not being adverse, can not be used as a bar to an action by his tenants. Appeal from the Circuit Court of Coles county; the Hon. J. W. WILKIN, Judge, presiding. Mr. John Favorite and Mr. S. M. Leitch, I. DEED-Description, when sufficient and parol evidence.-The law is well settled that any description of land in a deed of conveyance, by which the identity of the premises intended to be conveyed can be established, is sufficient; and that for purpose, for the appellants. of sustaining a grant, extrinsic evidence, may be used to idenify and establish the objects and calls in the deed, though it is not admissible to enlarge or vary the terms of a ' deed. Messrs. Wiley & Neal, for the appellees. II-II. -Thomas Young et al. v. Sarah 4. M. Young et. al. (Opinion by CRAIG, J., affirming.) FILED AT SPRINGFIELD, MARCH 30, 1885. I. RESCISSION Of sale of land for inadequacy of consideration.—The fact that a son did not pay or agree to pay the value the last deed is $100, No money was paid, nor was there any agreement to pay any. of land conveyed to him by his father, can not defeat the title he aquired by such conveyance, and affords no ground for setting the same aside. Natural love and affection in such case is of itself a sufficient considera- influence and fraud, the relation of parent tion for the conveyence. 2. CONSIDERATION When a deed expresses a pecuniary consideration, and it is impeached for undue and child, can not be set up to sustain Love and affec- the deed; Kerr on Fraud and Mistake, tion. -A conveyance of land by a father to 191, 192; Clarkson v. Hanway, 2 Peere, Wms. 203. The consideration expressed is so inadequate as to show imposition and oppression : McArtie v. Eugart, 13 Ill. 248. A false representation which influences a party and causes him to make a contract will avoid it, whether the party making the same knew its falsity or not: Lockbridge v. Foster, 41 Cam. 573; Whelan v. Whelan, 3 Cow. 537. Gross inadequacy of consideration is 3. RESCISSION For fraudulent repre- strong evidence of fraud: Lowther v. Lowsentations. When a father aged about ther, 13 Ves. 103; Underhill v. Harwood, seventy years, but capable of transacting 10 Ves. 219; 1 Story's Eq. Jur., Sec. 240; ordinary business, conveyed a tract of land Judge v. Wilkins, 19 Ala. 765. to his son, upon the verbal promise of the latter not relied on, and upon the statement of the son that a certain party was about to sue the grantee, and would take the land, and such other party resided near to the grantee, and it appeared from often repeated declarations of the grantee made afterward that the land was his son's and that he had given it to him, it was held that the conveyance could not be set aside in equity on the ground of undue influence and fraudulent representations on the part of the son. 4. To justify the rescission of an executd contract of sale for fraud on the part of the grantee, it is not only necessary to show misrepresentations of facts by clear proof; but such misrepresentations must be about matters material, or matters material to the interest of the grantor. If relating to an immaterial thing, or it is a matter of opinion, or relates to a fact equally open to the inquiry of both parties, a court of equity will not set aside the conveyance on the ground of fraud. Writ of error to the Circuit Court of Shelby county: the Hon. JESSE J. PHILLIPS, Judge, presiding. Messrs. HAMLIN & HOLLOWAY and Mr. ANTHONY THORNTON, for the plaintiffs in error. When a deed is obtained without any consideration paid, and by deceit and false representations, the transaction can find no sanction in a court of justic: II 'hite v. White, 89 Ill. 464. Counsel also made points upon the facts shown by the evidence and in relation to laches. Messrs. MOULTON, CHAFFEE & HEADEN, for the defendants in error. Even if representations were false and fraudulent, it must appear that the party was influenced by them-relied on them and would not have acted only by reason of such representations: Douglass v. Litler, 58 Ill. 342; Tuck v. Downing, 76 Ill. 71; Henry Fauntleroy v. Wilcox et al. 80 Ill. 477. Parol evidence to defeat a deed must be clear and convincing: 78 Ill. 514, Wilson v. McDowell. The presumption is that all deeds are The value of the land is shown to be $2,600. The consideration expressed in tions. him to find out their truth or falsity, and he does not inform himself, he can not complain: 3 Scam. 32. situation of property given in security for money loaned, appoint appraisers to ascertain its value, employ attorneys to examine the abstracts of title, prepare the notes borrower, receive the drafts and pay the money over to the borrower, is the agent of the lender in making the loan of money: Payne v. Newcamb, 100 Ill. 611. The declarations of the party have always been considered competent and important and deeds of trust to be executed by the evidence to explain the acts and intention of parties: Redfield on the Law of Wills, First Ed. 1864, page 526, Secs. 34, 35, 36 and note 39; Page 529, Sec. 42; Page 530, Sec. 43; Taylor v. Kelly, 31 Ala. 59; 40 Penn. St., Neel v. Potter, exactly in point; 61 Ill. 513, Uhlich v. Muhlke, 1 Green. Ev. Sec. 108. The violation of a parol promise to convey or re-convey land will not constitute such a fraud as to take a case out of the Statute of Frauds: 45 Ill. 76. Rogers v. Simmons; 13 Ill. 236, Perry v. McHenry. A voluntary conveyance is good between the parties; 63 Ill. 511, Willmen v. Dunn; 1 Gilm. 85, Lowery v. Orr. 19-16-Thomas J. Cox v. The Massachu setts Mutual Life Ins. Co. (Opinion by SHELDON J. affirming.) FILED AT SPRINGFIELD, MARCH 30, 1885. I. USURY-Commissions paid to agent. -Where an agent of an insurance company employed by the company to solicit applications for insurance only, who is not its agent to make loans for money, on making application to the comqany for a loan for another, retains out of the sum loaned a commission for his services, and the borrower gives his note for the full amount, and for the payment of the highest legal rate of interest, the exaction of such commission from the borrower, will not render the transaction usurious. Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of McLean county; the Hon. FRANKLIN BLADES, Judge, presiding. Messrs. WILLIAMS, BURR & CAPEN and Messrs. STEVENSON & EWING, for the appellant. A money lender will be charged with notice of the commission paid to his agent where it is understood between the lender and his agent that the latter, in effecting a loan form the former, is to get his commission from the borrower for his services in examining a title to the property, having the same appraised, etc. 100 Ill. 611. If the agent, with the consent or knowledge of the money lender, makes a loan and receives compensation from the borrower for his services, the transaction is usurious: Philo v. Butterfield, 3 Neb, 259; Cheney v. White, 5 Neb. 261. As long as any portion of the principal remains, upon which the usurious interest accured and paid, such usurious interest may be deducted from or set of against the remaining principal, and this can not be prevented by a settlement between the parties. The settlement is not conclusive where there is usury: Payne v. Newcomb, 100 Ill. 611. The requirement that the borrower should take a life Insurance policy in connection with the loan, and as a condition upon which the loan was granted, the highest legal rate of interest being reserved in the notes, makes the loan usurious: National Life Ins. Co. v. Harvey, 7 Fed. Rep. 805; Ins. Co. v. Kittle, 1 McCrary, U. S. Circuit. Court Rep. 234. Mr. B. S. EDWARDS, for the appellee. To make a loan usurious, there must be an intent on the part of the lender to take more than the legal rate of interest: Palmer v. Call, 7 Fed. Rep. 720. The fact that an agent, without the knowledge or authority of his principal, upon A loan agent who is required to learn the loaning the money of the latter, exacts a sum in excess of lawful interest, does not make the loan usurious: Phillips v. McKellar, 92 N. Y. 32. stated, she is to be considered the head of a family, and as such entitled to the exemptions in such case provided. Held further No decision of this court is in conflict that creditors are stopped from showing with this view. SUPREME COURT OF that the child was adopted for the purpose of enabling her to hold said land as a INDIANA. homestead-Mathewsy. Weeks.-(Guthrie) WAREHOUSE STORING OF GRAIN AND District Court of Shawnee Co.-Kansas MIXING IT WITH OTHER GRAIN-LIABILITY Law Journal. OF WAREHOUSEMAN IN CASE OF ACCIDENTAL DIVORCE-ACTION FOR, BY AN INSANE grain on deposit to be stored for the owner PERSON, BY GUARDIAN. This action was and, mixes it with other grain in a common brought by John Tucker as guardian of bin, from which he is occasionally selling Margaret Birdzell, against Caleb J. Birdzell, and taking away, and also buying and adding her husband, for divorce and alimony. In thereto other grain, but always keeping the trial court the right to a decree of divorce enough on deposit to supply depositors was denied, but alimony was granted in the with their deposits on demand, in case of sum of five thousand dollars to be in full of accidental loss by fire, not arising from any negligence of the warehouseman, it is held, that he is not liable to a depositor for the value of the grain in store. In support of this is cited, Lupton v. White 15 Vesey Jr. 432: 2 Kent. Com. (12th Ed.) 365, 590; Story on Bail. Sect. 40: 2 Schouler Pers. Prop. Sec. 46: There seems to be some conflict of opinion in the cases cited, but the weight of authority is that the contract is one of bailment and not of sale.-Rice v. Nixon.(Elliott C. J.) Ins. Law Journal May, 1885. O SUPREME COURT OF KANSAS. HOMESTEAD—ADOPTION OF MINOR CHILD - HEAD OF FAMILY DYING INTESTATE.— George Weeks died in 1882 leaving as his only heir at law his widow, the defendant in this case. On November 3rd 1884 defendant adopted a child, Nellie Williams, in accordance with the statute in such cases provided. all claims that might ever be made by plaintiff, upon the estate of defendant. From this judgment defendant appeals. Held that the court below ruled correctly in denying a decree of divorce but erred in granting alimony. The statute providing for alimony declares that the wife may obtain alimony without a divorce, for any of the causes for which a divorce may be granted. The Court say: "After a careful consideration of this case we have come to the conclusion that the guardian of an insane woman cannot maintain an action against her husband for alimony. Judgment reversed.—Birdzell v. Bridsell.-(Valentine J.) -Filed April 10, 1885. Louisville Jan. 14, 1859. KENTUCKY COURT OF APPEALS. CONDITIONAL WILL "IF I DIE AWAY FROM HOME I BEQUEATHE” &C. A paper writen by William A. Likefield and admitted On the 30th of August 1884 to probate as his last will is as follows: plaintiff recovered a judgment against defendant and on November 28th 1884 caused an execution to issue on said judgment. The Sheriff levied upon and sold the homestead of the widow, and upon the motion to confirm the sheriff's sale the question is raised as to whether said land was exempt under the homestead laws of the state. Held that "If any accident should happen to me that I die from home, my wife, Julia Ann Likefield, shall have every thing I possess, the house and lots, and the money that is due to me, and for her to hold it as her own." WM. A. LIKEfield. Held that his dying away from home was the widow having adopted a child as above not a condition precedent to the will taking |