14 III. 428, the inadequacy of the price paid is made, under the circumstances there proven, a prominent element in the solution of the question involved. The declarations and statements of the parties contemporaneous with the execution of the deed are admissible, not for the purpose of altering or varying the written instrument, but as tending to illustrate whether a condition of defeasance should be added thereto in equity. Such declarations, while admissible, may or may not be controlling. It may be held that the declarations are but a device to cover usury, or to conceal hard and unconscionable bargains, driven by a relentless or sharp and designing creditor; or the debtor may be misled into the execution of the deed; or, from the peculiar circumstances shown, incapable of understanding his relations to his creditor thereunder. In all such and kindred cases equity will, if necessary to the ends of justice, look beyond the statements of the parties and written instrument into the facts and attending circumstances, and give to the transaction its true character.

An application of these principles to this case will relieve it of any considerable difficulty.

Murphy was old and illiterate; unfamiliar with the methods of business; scarcely able to read or write; and, as the evidence tends strongly to show, much below the average mentally, and incapable of comprehending the difference between a deed of trust and an absolute conveyance. The evidence also shows, and we think the facts of the case demonstrate, that he confided in those with whom he dealt to take care of his interest as well as their own. Mr. Darst, on the contrary, was a sharp and successful business man, possessed of a high order of business ability, and who had amassed a fortune in real estate transactions.

In 1859, Murphy, who was then living in Peoria, received money from Ireland, and with it purchased the 160-acre farm in controversy, and some years afterwards moved upon it. Murphy testifies that he had implicit confidence in Darst, and their course of dealing tends strongly to corroborate him. It appears that on the eleventh day of June, A. D. 1867, Murphy was indebted to Gardner T. Barker in the sum of $120, and applied to Darst to borrow money with which to pay it. Darst declined to make the loan, but told Murphy he would take him where he could get it. On the way he advised Murphy to borrow $300 and pay his debts. Murphy at that time owed Darst $50. They applied to Mr. Julius Starr, and he loaned Murphy $300, took his note therefor to Mrs. Stewartson, with a trust deed on this same land to secure it. There is some conflict as to where all this money went to, but it is clearly shown that $30 of the $300 was deducted out by Starr, and credited on the back of the note as one year's interest, at 10 per cent. The second year's interest, $30, fell due January 11, 1869. On the third day of September, 1869, the interest and principal being due and unpaid, Murphy came to Peoria, and endeavored to arrange the matter with Mr. Starr, but was unable to do so. Starr had either advertised a sale of the land under the trust deed, or was about to do so. He testifies: "The old man [Murphy] was there [Starr's office] crying, and made a terrible ado because I was going to sell him out, and I got out of patience with him."

Darst and Murphy met at Starr's office, and Murphy applied to Darst for the loan of money to take up the Stewartson note, which all agreed in saying amounted then to about $330. Murphy testifies that Darst agreed to loan him the money, and did so, and that the paper he signed was drawn by Starr, and he signed it at Darst and Starr's request, without it being read to him, and he supposed it was in some way a receipt showing he had received the money of Darst. It is, however, shown by both Darst and Starr that he is mistaken in reference to the deed being read over to him. Mr. Darst's version, taken from the abstract prepared by his counsel, is as follows: "I bought the land from complainant,-it is described in the deed, [of September 3, 1869,]-or

his interest in it. He came into Mr. Starr's office. I was sitting there, and he wanted to borrow some money. I told him I would not loan him any money; that if he had any real estate to sell I would buy it, if he sold it right; and then he said he would sell what interest he had in this same property that he put this deed of trust on. He said he did not want me to let his wife or his family know that he had sold it. He said he wanted to keep it from them. He would rather I would have it than his family, because they used him so mean; that he did not expect to live long, and wanted me to let him stay there as long as he lived. This was about all that was said at that time. The deed was made out then, and I paid Starr $300, and then he went down to the bank. I think we went down there for him to get some of those tickets I had, and get some more money, but I am not certain. I am satisfied he got some more money, because he always wanted some more money. That instrument that he signed at that time was fully explained to Murphy. He knew he was making me a deed to his land." It is noticeable, if Mr. Darst is correct, that Murphy at once, without fixing upon any price for his land, upon Darst's proposal to buy if he "would sell right," closed with the offer, only asking that he be permitted to live on the land his life-time. It is not stated that Darst even verbally consented to the request, while it is clear no reservation of his right of occupancy is mentioned in the deed, nor was any memoranda in writing made respecting it. We have said Murphy closed with the offer of Darst to buy. That offer was to buy if Murphy "would sell right." What was right was not discussed. Mr. Darst made no other offer. Murphy fixed no price on his land. Mr. Darst further testifies: "After we made the bargain we went into Mr. Starr's, and he [Murphy] had him make this deed."

We have given in full Mr. Darst's account of that "bargain" which culminated in the execution of this deed. He testifies that he has given "about all that was said at that time." There is some conflict in the evidence as to who suggested that the consideration in the deed be expressed at $1,000, but that is not material. It is not pretended that $1,000 was ever paid. Darst paid Starr $300, and no more, but he testified he thinks he paid Murphy some money, enough to make the whole amount paid $400. He is, however, not definite in his recollection, and had nothing by which to refresh his memory. Murphy positively denies having received a dollar. The evidence shows the land worth, at the time of this transaction, from $5,000 to $7,000, from which should be deducted the inchoate right of dower in Murphy's wife in considering its value. It appears, and is not contradicted or sought to be explained, that, when Darst paid Starr the $300, the note was indorsed in blank, and delivered with the trust deed to Darst, who retained them, and under subpoena produced them at the hearing. It further appears that the note is credited with two years' interest. The first was retained out of the money loaned. The second indorsement of interest is shown to be in Mr. Starr's handwriting, and is as follows: "Received interest, by Jacob Darst, until June 11, 1869, $30. MARY J. STEWARTSON, by JULIUS STARR, Atty." It is not pretended, nor can it be from this record, that anything was paid prior to September 3, 1869.

But it is said by Mr. Darst again, quoting from the abstract: "I did not own the note when the interest was paid, is my recollection." It is apparent that his recollection is at fault. If Darst purchased the land of Murphy, why take an assignment of the Stewartson note? Being indorsed in blank, and remaining uncanceled, he, or any subsequent holder, could fill up the indorsement, and in equity thus transfer the security, the trust deed remaining uncanceled and of record. Again, if the transfer of the land was absolute, why the particularity of the indorsement of the interest? If, as Murphy testifies, Darst agreed to take up the note as a loan to him, it is at once apparent why the interest is credited as having been paid by Darst, and why the date became

important. The note would then show that interest had not been paid to September 3d, but only until June 11th, and that Murphy not only owed the principal, but the interest indorsed as paid by Darst as well. But if it was an absolute sale of the land, the notes belonging to Murphy were paid, and should have been canceled and delivered up to Murphy. Mr. Darst could not be the owner of the land and the consideration paid for it at the same time. It could hardly be that the assignment of the note, and its being kept in condition to be enforced against Murphy, was accidental; but it is evident, we think, that it was purposely and intentionally done, and evidence of the exact amount paid by Darst carefully preserved by him, for a purpose. That purpose could only have been to preserve the evidence of the indebtedness of Murphy.

But this is not all. Darst testifies that Murphy said he would rather Darst would have the land than his family; that he did not expect to live long, and wanted Darst to let him stay there as long as he lived. As before said, no written agreement was made, or apparently thought of. No terms were mentioned between them, no rent reserved, no contract as to taxes, repairs, or improvements even suggested. Murphy continued in possession without interruption, received all the proceeds therefrom, since the date of the deed to Darst, without interference by Darst in any way. He paid all taxes, and so kept the place in repair that, as he testifies and is not contradicted, it could have been sold for $8,000 shortly before the hearing. He was under no contract obligation to pay taxes or keep up repairs if Mr. Darst's understanding of the transaction is correct. During all this time Darst made no other assertion of title than to place his deed of record. The declarations of Murphy, if Darst remembers them correctly, are not inconsistent with the theory that the money was advanced as a loan, except, perhaps, the declaration that he would sell his interest; and can readily be reconciled consistently with that theory when the circumstances are all considered.

Some reliance is placed on the fact that Murphy permitted substantially 10 years to elapse before asserting his right to redeem, and that he then, as it is claimed, endeavored to make a repurchase of the land from Darst. The obvious answer is, first, that Murphy swears that he did not know of the existence of the deed until after he had attempted to settle with Darst, and had actually paid him $300 on his claim. The weight of the evidence, perhaps, shows that, in the transactions relating to what Murphy calls a settlement with Darst, Darst used the words that he would resell, and that Murphy could purchase, and Mr. Casey undoubtedly so understood it. It is, however, evident, if it be conceded that Mr. Darst is correct in that regard, that the arrangement was not consummated; and if the deed was in equity a mortgage only, there was nothing in these subsequent negotiations to change its character, even if Murphy understood the effect of the language employed. He testifies that he first learned that Darst had an absolute deed to his farm only a short time before filing the bill in this case, from Mr. Cutler, whom he had sent to effect a settlement with Mr. Darst. Mr. Cutler testifies that when he went to Mr. Darst, at Murphy's request, Murphy had not informed him that any land was involved; that he asked Mr. Darst to see Murphy's note, and permission to cast up the interest on it. Darst replied he had a deed for Murphy's farm, but said nothing about a note one way or the other. Upon being asked what he would take for his claim against Murphy, he replied that his claim amounted to $1,500, but he would take $1,200. Mr. Cutler further testifies that he told Murphy that Darst said he had a deed, and "the information affected him visibly;" "so much so that he wept about it." It is true that this conversation is explained by Mr. Darst as referring to the so-called attempted repurchase of the property, and very probably correctly so. It is abundantly shown, also, that Murphy was improvident, and, as before stated, the evidence tends strongly to show, by reason of mental incapacity, aggra

vated by his habits, he was incompetent to understand business of this character. Many neighbors and business men of Peoria, who have known him for years, dealt with him, and know of his affairs, testify to his want of capacity to transact business, and his uniform habit to leave the business to be done by the party with whom he was trading, if he was a person in whom he had confidence.

We are of the opinion that, in view of this evidence, the fact of the lapse of time, without the assertion of his right to pay this debt, is of slight weight, when considered as an admission by Murphy of the absolute character of the conveyance. We are of opinion that the deed was intended as a security only for the money advanced by Darst, and the circuit court was fully justified in rendering its decree permitting redemption therefrom.

There is, as we understand, no fault found with the amount found by the master, and decreed by the court to be paid, if the decree is in other respects warranted. We do not understand that laches in the complainant in asserting his equities is relied upon as a defense. It is not set up in the answer, as it should have been if relied upon as a defense, and is only incidentally, as it seems to us, referred to in the brief of plaintiff in error, and we refrain from further discussion of that question.

We are unable to perceive any error in this record warranting a reversal, and the decree will accordingly be affirmed.

(119 Ill. 532)

OLIVER v. OLIVER.

(Supreme Court of Illinois. January 25, 1887) EQUITY-CANCELLATION OF RECORDED DEED-MEASURE OF PROOF.

To sustain a bill to set aside and cancel of record a deed of land, on the ground that it is a forgery, the proof must be clear and convincing..

Error to circuit court, Livingston county.

Bill to set aside a deed, and cancel it of record. Edward R. Oliver, the defendant, claimed under the deed in question to Franklin Oliver, his father. C. C. Strawn, for plaintiff in error, Edward R. Oliver. Harding & Murdock, (Thomas F. Tipton,) of counsel, for defendant in error, Revilo Oliver.

MAGRUDER, J. This case is now before us for the second time. The former opinion, filed May 19, 1884, is in 110 Ill. 119. Since the reversal and remanding of the cause, an amended bill has been filed, alleging that the original deed, claimed to have been executed by Amorretta Oliver to Revilo Oliver, has been discovered. and charging that the recorded deed from Amoretta Oliver to Franklin Oliver, Sr., is a forgery. The question involved is purely one of fact. The record is very voluminous. We shall not attempt to analyze, compare, and discuss the testimony of the numerous witnesses on both sides. We have examined it all, and weighed it carefully, and shall only give, in general terms, the conclusion which we have reached. We are of the opinion that the recorded deed is not proven by a clear preponderance of the evidence to have been a forgery.

June 11, 1879, Amoretta Oliver obtained a decree of divorce from Franklin Oliver, Sr., her husband, and was awarded the 400 acres in controversy as alimony. The defendant in error, Revilo Oliver, is their son. John L. Oliver, hereafter mentioned, is another son. In 1879, Franklin Oliver, Sr., was 93 years old. A bitter animosity existed between himself on the one side, and his wife and her two sons, Revilo and John, on the other. The record teems with exhibitions of cruelty and hatred, springing from an unnatural family feud. On October 21, 1879, Franklin had some negotiations with his former wife with reference to an exchange of the 400 acres he had given her for another tract, owned by him, which contained 765 acres. On that day

they had a meeting at her house, at which Minnerly, a justice of the peace, and the main witness for defendant in error, was present. Minnerly swears that he made out two deeds, one from Franklin to Amoretta for the 765 acres, and one from Amoretta to either Franklin or two nieces of his, in New Jersey, for the 400 acres. The negotiations, however, fell through. Mrs. Oliver refused to carry out the exchange. Franklin Oliver was angry about it, and threatened that he would set aside the divorce if his former wife should not execute the deed to him of the 400 acres.

On October 25, 1879, a second meeting took place, at which Franklin, Amoretta, Revilo, and Minnerly were present. Minnerly states that when he came to the house on this second occasion Franklin said to him: "Ithink it will not be a failure this time; we have agreed, and there will be no controversy." It is undisputed that two deeds were then executed. Franklin made a deed to Amoretta, conveying to her 845 acres, having added an 80-acre tract to the 765 acres already mentioned. Franklin Oliver, who has since deceased, swore on the former hearing that Amoretta then executed to him, in exchange for the 845 acres, a deed conveying to him the 400 acres, and that he took the last-named deed away with him, and on October 28, 1879, went to Pontiac, and recorded it. On the other hand, Amoretta Oliver and her son Revilo swear that the deed of the 400 acres, which she then executed, was to Revilo Oliver, and not to Franklin Oliver. The only question in the case is, did Amoretta Oliver make a deed of the 400 acres to Franklin Oliver or to Revilo Oliver?

The records of Livingston county show that a deed from Amoretta to Franklin Oliver, conveying the 400 acres, was recorded in the recorder's office of that county on October 28, 1879. After its record, and on or about October 30, 1879, it was delivered to Franklin Oliver. On the morning of January 3, 1880, Franklin Oliver was found in the house, in which he lived alone, in his bed, with his hands and his feet tied, and a gag in his mouth. His clothes and his papers were scattered upon the floor, and his trunk had been rifled. He swears that at this time the deed which he had recorded was stolen from him. The evidence points very strongly to Revilo Oliver as the person who committed this outrage upon his aged father.

The evidence introduced upon the first hearing has already been commented upon in our former opinion. Upon the second hearing a deed of the 400 acres, dated October 25, 1879, signed by Amoretta Oliver, and purporting to have been acknowledged before A. B. Minnerly, justice of the peace, on October 25, 1879, running to Revilo Oliver, as grantee, was introduced in evidence as the original deed that was executed by Amoretta on October 25, 1879. It is argued that as she then made this deed to Revilo, and as she made no other deed of the 400 acres except this, the deed to Franklin Oliver, which was recorded, must have been a forgery. The deed thus produced comes attended with so many circumstances of suspicion that it cannot be allowed to weigh against the solemnity of a public record. It shows upon its face that it was never recorded. Revilo Oliver swears that he drew it, and the proof tends to show that the writing in the body of it is in his handwriting. The signature is Mrs. Oliver's. Řevilo and his mother were interested parties. The certificate of acknowledgment has no seal. It is signed, "A. B. MINNERLY, J. P." It is a printed blank, and the few written words which it contains appear to be in Minnerly's handwriting. Minnerly has left the state of Illinois, and is now living in Texas. The testimony introduced by defendant in error to explain the loss of this document is not satisfactory. Revilo Oliver says that, after the deed was executed and delivered to him, on October 25, 1879, he laid it down on the table in the room where his father and mother then were, and went to the timber. Mrs. Oliver says that her husband, who remained in the room some time after Revilo left, wanted the deed, and she let him take it, and he said he would carry it to