345

July 10, 1900, and the deed of Noven de ground that they were obtained by the of William D. Taylor and his daughte et appear from the abstract that there ev.. - Brown to his wife other than that pro. The reference to a deed of the earl.. tislave been intended to designate the a... ligent entered into on July 17, 1900. In " to be of the proof, however, this apparent

by her assignment of cross-errors

in so far as it sets aside the crave

indemade to her. The parties and the

las charging undue influence

hose egarded by us. We find,

mit there is absolutely no evit nder der instrument executed or Pas is a pally be exe of mine inffinesse

ding,

ich wer

not in

347

, or that they ut the execuIn re will of or Elsie Tay1 and joined ght lawfully n joining in or inference The circuit conveyances

1 of certain r that this : pleadings,

f both parinpleasant.

n, testified zh Brown. t of many hat it was

nportance. tifying in ressed in Hilliard,

sets aside

sie Brown

er respects

to the cir

or want of ed or deeds

tition.. ections.

rights in the land to Hugh Brown. It was witnessed by John Jack and Clara Taylor. The deed of November 27, 1901, reserved a life estate to the husband, was acknowledged before John Jack, a notary public, and he and William D. Taylor signed as witnesses. Neither Clara Taylor nor John Jack was called as a witness. William D. Taylor was called for Mrs. Brown. Opposing counsel objected to his testimony on the ground that he was incompetent, for the reason that he was a party to the suit, and the court sustained this objection. No one testified to having been present at the time either of the instruments was executed or at any time when either was prepared, or when the execution or preparation of either was suggested or discussed with Hugh Brown or in his presence. It is not made to appear by this record that W. D. Taylor consented to the marriage or knew that the ante-nuptial agreement was to be executed. The only connection that he is shown to have with the execution of any deed is found in the fact that his name appears upon the deed of November 27, 1901, as a witness to the execution thereof. There is no evidence whatever to show that Mrs. Brown, either before or after her marriage, solicited or requested Hugh Brown to execute any conveyance to her or to execute the contract, or did anything to bring about the execution of any instrument beyond joining in the contract and accepting the deed when it was tendered to her. On the contrary, it is shown that in marrying her and conveying his property to her he did exactly as he had long intended to do.

Plaintiff in error's position is that the relations existing between Brown on the one side and his wife and her father on the other side were fiduciary in character; that they were the dominant parties and Brown the dependent party, and that the presumption therefore arises that the execution of the contract and the deed was obtained by undue influence. No such presumption obtains here, because it is not shown that either William D. Taylor or Mrs. Brown sought to

have Brown execute either of the instruments, or that they did anything for the purpose of bringing about the execution of either of the instruments by Brown, (In re will of Barry, 219 Ill. 391,) except that Mrs. Brown, or Elsie Taylor as she then was, agreed to marry Brown and joined with him in executing the contract, as she might lawfully do. Her promise to marry him and her act in joining in the ante-nuptial contract raise no presumption or inference that she exercised undue influence over him. The circuit court erred in setting aside the conveyance or conveyances to Mrs. Brown.

Plaintiff in error complains of the exclusion of certain evidence which she offered. It does not appear that this testimony would have been competent under the pleadings, and no error was committed in its rejection.

This case was hotly contested. The feeling of both parties and solicitors toward their opponents was unpleasant. Mr. Fowler, one of the solicitors for Mrs. Brown, testified in her behalf in reference to the mentality of Hugh Brown. His testimony is of the same general tenor as that of many others who testified for her. We cannot believe that it was regarded by the chancellor as of controlling importance. Our view as to the propriety of an attorney testifying in a suit in which he is employed we recently expressed in Wilkinson v. People, 226 Ill. 135, and Bishop v. Hilliard, 227 id. 382.

The decree of the circuit court, in so far as it sets aside and annuls the conveyance or conveyances to Elsie Brown and awards partition, will be reversed. In all other respects it will be affirmed. The cause will be remanded to the circuit court, with directions to dismiss the bill for want of equity in so far as it charges invalidity of the deed or deeds from Hugh Brown to Elsie Brown and seeks partition.,

Reversed in part and remanded, with directions.

THE PEOPLE ex rel. John R. Thompson, County Treasurer, Appellee, vs. CHARLES H. SMYTHE et al. Appellants.

Opinion filed February 20, 1908.

This case is controlled by the decision in People ex rel. v. Smythe, (ante, p. 242.)

APPEAL from the County Court of Cook county; the Hon. D. T. SMILEY, Judge, presiding.

TAYLOR & MARTIN, for appellants.

GEORGE A. MASON, and WILLIAM T. HAPEMAN, (EDWARD J. BRUNDAGE, Corporation Counsel, of counsel,) for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

This is an appeal from a judgment and order of sale entered at the July term, 1907, of the county court of Cook county, for non-payment of an installment of a special assessment levied by the city of Chicago and alleged to be due and delinquent.

The errors assigned and questions involved are identical with those involved in the case of People ex rel. v. Smythe, (ante, p. 242.) The decision in that case disposes of all questions involved in this one and a like judgment will be entered here.

The judgment of the county court is reversed and the cause is remanded to that court, with directions to enter a judgment and order of sale in compliance with section 191 of the Revenue act, and to spread the same of record in the tax, judgment, sale, redemption and forfeiture record.

Reversed and remanded, with directions.

ROBERT N. FOSTER, Appellant, vs. THE ILLINOIS ZINC COMPANY, Appellee.

Opinion filed February 20, 1908.

FRAUD what is not ground for setting aside a deed to coal under farm. Representations by the agent of a coal company to the owner of a farm that the agent had bought part of the coal land adjoining the farm and intended to buy the rest, and that it would be to the owner's interest to sell while he had a chance, as he might not be able to sell when all the surrounding coal land was bought up, are not such representations, even if they were relied upon, as justify setting aside a deed to the coal under the farm.

APPEAL from the Circuit Court of LaSalle county; the Hon. S. C. STOUGH, Judge, presiding.

SEARS & SMITH, for appellant.

DOLPH, BUELL & ABBEY, and DUNCAN, DOYLE & O'CONOR, for appellee.

Mr. JUSTICE DUNN delivered the opinion of the court:

The appellant filed his bill in the circuit court of LaSalle county to set aside a deed for the coal underlying a certain. quarter section of land in said county, executed by the complainant to the defendant, on the ground that its execution was procured by the fraud and misrepresentation of the defendant's agent, or to require a re-conveyance to the complainant of the first vein of coal underlying said land. From a decree dismissing the bill for want of equity the complainant has appealed to this court.

The fraud and misrepresentation charged in the second amended bill related to the procuring of an option from complainant in November, 1899, and the execution of the deed in July, 1900. It is alleged that B. D. Brewster, an agent of appellee, came to appellant's home in Aurora for the purpose of obtaining an option on his coal lands, and