The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1883-03-03

S. 900, of which e., 0OD was paid IN cash, the
balance being payable IN four equal annual
payments, win interest A. ~ per- r"h'' per
annum, secured bv mortgage upon the prop
erty conveyed. Possession was given Tue
county authorities atoncr, aud lie improve
mcnt Of the property FOR The purpose design
ed wac begun, and has continued ever since.
None of the annual installment notes nave
been paid In view Of the iaihirc ot the
county to pay the lnstallment noies, Chap
man brought suit for foreclosure and recon
veyance Of the property, or, II the county
should so elect, the c0mplsinsnts would &C.
cept In lieu thereof the principal and inter
est OF the notes given by the board OF CON-
missoners in 1859. 4 demurrer Was inter-
posed that the notes and mortgage were
void, ab initio, for want OF power on the part
OF the county to make them, and also because
any action on them was barred by the statute
of limitations. On final hearinS tht
bill was dismissed, and ;bc decree 70 that
effect was brought 10 rae Supreme Court for
review. In thp opinlnn uf the court which
was read by Mr.. Justice Matthews, IL is said
,L.. "Tae statute Of limitations can not
| be applied In this case. Neither are The APP
peliantS 10 bc deprived of the sum due he
cause the action Of the commissioners was
void, equity requiring that If county OBJ
ta!ns the money or property OF Others with
out authority, the law, independent of any
statute, will compel restitution or compensa.
tion' Tho purchase being authorized, the
manner Of payment aud for security alone
being unauthorized, The principle stated by
Mr.. Pollock in his principles Of Contract,
aGi, applies here viz: When no penalty i.
imposed. ana the intention Of the legislature
appears TO be simply that an agreement IL
not TO be inforced, then neither the agree
ment Itself nor the performance OF tits to be
t,n oh unlawful fnr nt hnr
In Hitchcoci Us. Go'nst0n, ~ |. 5. 33l.35l
this court held that If payments can not be
made in bonds. il would be sanctloning rank
injustice TO hold that payment need not to be
made at all. Such is not the law .... II
is further held by this court that none OF the
statutes of limitations invoked by the defend
emit apply 10 the case at all; and although
the right OF Chapman to rcscind the contract
and demand a rccOnveyance accrued at the
very date of the deed, he was not bound tt
exercise the right, and his cause OF action
did not accrue until he had made manifest
his election, waiting a reasonable length OF
time for the county to make the payment IL
the lawful mode. There is nothing to show
i that the delay that has taken place in FLEEING
this bin has been unreasonable, and there
fore il Is impossible 10 say that any statute OF
limitations has ever begun to run against the
cause Of action. There il, therefore. nothing
to prevent the relief prayed for being granted
if it can be done without injustice to the de.
/ PENDANT, and the appellants own proposition
insures against such injustice. In not grant
ug the relief asked for the circuit court erred,
aud its decree must be reversed, with direc
tions to ascertain the amount due from the
county Of Douglas making all proper allow
ances, and thereupon to render decree, un
less the amount so found due be paid within
a reasonable time, to be fixed by the court
! that the county be required to reconvey the
land to the appellants upon such terms as
the equities Of the case nay require"