been divorced from him), to the estate of before going to the notary's office, and which John H. Taylor. Subsequently appellant con- described the home farm only; that he never veyed his interest in the home farm to his to his knowledge signed the deed recorded in brother James, and James conveyed his one- the recorder's office, and that it was obtainfourth interest to appellant in all the other ed by appellant by fraud, for the purpose of lands owned by John H. Taylor at the time | defeating the rights of appellee. The bill of his death. Appellant thereupon conveyed to his sister, Mary E. Glyde, the whole of the Iowa lands, whereupon she surrendered to him his $8,000 note.

further alleges that the indebtedness of appellee and Edna Taylor was put in judgments and has never been paid or satisfied. The bill contains many other allegations, but the foregoing are sufficient to show the grounds upon which it is based. The prayer is that the deeds be set aside and the appellant be required to account for the income received from the land, etc.

In the fall of 1905 appellee returned to Illinois, and in the spring of 1906 he and his mother filed the original bill in this case. The bill alleged that the pretended deed from appellee to appellant for the Illinois lands was a fraud; that when appellant visited Appellant was defaulted at the return term appellee in San Francisco and talked about after service obtained, which he claimed was securing the deeds he stated he desired them due to the fault or neglect of his counsel, for the purpose of making some settlement and the cause was referred to the master to with Mary E. Glyde, and it was agreed be- take proof and report. The master proceedtween the parties that appellant should pay ed to take testimony, and appellant employcertain notes of appellee and his former ed other counsel, who obtained an adjournwife due the estate, amounting to $9,000, in ment of the hearing before the master until consideration of which appellee agreed to he could appear before the court at the Noconvey to appellant his interest in the Iowa vember term, 1906, and move the court to set lands and the home farm. The bill alleges aside the default and for leave to answer. appellant represented at the time that the The motions were made at the November indebtedness of appellee and his wife to the term and taken under advisement. At the estate amounted to over $23,000; that ap- May term, 1907, before the motions had been pellee had not had communication with Edna passed upon, counsel prepared and moved for Taylor for a long time, and knew nothing of leave to file a supplemental answer also. her transactions with his father, but was Both motions were denied, and the taking led to believe by appellant that she had bor- of testimony was resumed before the master rowed large sums of money from said John in October, 1907. Appellant was summoned H. Taylor, and appellee, being desirous of before the master as a witness, and testified paying all such indebtedness, agreed to con- fully as to all the matters and things alleged vey his interest in the Iowa lands and the in the bill. The testimony was completed in home farm in order to procure the liquida- May, 1908, and the master reported at the tion and settlement of his and Edna Taylor's November term his findings and conclusions. indebtedness to John H. Taylor. The bill By that report he found that appellant, as further alleges that the statements of appel- administrator of the estate of John H. Taylant were false; that Edna Taylor had only lor, took charge of all the property, real and borrowed $450; that appellant also repre- personal, of the estate, and collected rents sented that the estate of John H. Taylor, from the lands, money due the estate, and to both real and personal, was worth about a certain extent paid off debts; that he $40,000, and there was indebtedness against mingled the funds of the estate with his own, it to the amount of $20,000; that he also rep- and made no attempt to keep a separate acresented the lands had depreciated in value count of the estate's funds. He further after the death of John H. Taylor, and fur- found that at the time the deeds sought to be ther represented that payment to appellee of set aside were executed, appellant stated to $500 for his interest in the Iowa lands and appellee that the estate of their father was the home farm was a fair and equitable set- largely in debt; that the entire estate was tlement, whereas the truth is the estate of worth but little more than $20,000 after the John H. Taylor was worth in the neighbor- debts were paid, and that the lands of their hood of $80,000 above all indebtedness. The father had depreciated in value since his bill further alleges that appellant had pre-death-all of which statements were false; pared two deeds, one describing the Iowa lands and one the home farm in Illinois; that appellee read them, and agreed to sign them; that they went to the office of a notary public, where appellant produced two deeds, which appellee signed without further read-on appellant's statements, conveyed to aping or examination, and he alleges that if he signed any such a deed as was recorded in the recorder's office of Henry county, it was presented to him suddenly in place of the deed for the home farm, which he supposed

that in consideration of the payment of $500 and the agreement of appellant to cancel certain indebtedress of appellee and his former wife, the amount of which was grossly and fraudulently overstated, appellee, relying up

pellant his interest in the lands of their father and also in the personal estate. The master further found that appellant had not paid or satisfied the indebtedness of appellee and Edna Taylor; that appellant occupied a

lee; that appellant was in a position, and to file a second amended and supplemental it was his duty, to know the truth or falsity bill making the widow a party defendant. of the representations made about the value This bill sets out the fiduciary relation existof the estate of John H. Taylor; and that the ing between the parties, and at great length personal estate, exclusive of debts, amounted the alleged fraudulent statements and repreto more than $20,000. sentations of appellant as to the value of the estate of John H. Taylor and of the indebtedness of appellee and his wife to the estate; that the indebtedness had materially increased by loans to Edna Taylor after appellee left the state; that appellee told appellant he did not know anything about the facts in relation to these matters and would have to depend upon appellant dealing fairly with him; that appellant promised, as soon as he returned to Illinois, to send appellee copies of the inventory, appraisement bill, and reports relating to the estate, which would show the truth of appellant's representations, and he also promised to send all of appellee's and Edna Taylor's notes, canceled and stamped paid, but he failed to send any of said documents or papers. The bill further alleges that by reason of the fiduciary relation between the parties, and through the false and fraudulent representations of appellant, he was induced to make the conveyances of his right and interest in the estate and property of his father, and the income therefrom, for a consideration grossly inadequate, to wit, for less than one-half what appellee's interest was worth. It is alleged that since the execution of the deeds by appellee to appellant the latter has conveyed the home farm to his brother James and the Iowa lands to his sister. The bill recites efforts made by appellee to have a settlement and adjustment of the matter with appellant, but that appellant refused to settle or talk about a settlement. By way of supplement to the amended bill it was alleged that appellant had, as administrator, since the commencement of this suit, brought two suits, one in the circuit court of Rock Island county, and one in the circuit court of Henry county, upon notes of appellee which appellant had agreed to pay, cancel, and return to appellee when the conveyances were made, and had reported as uncollectible a note of Edna Taylor which he had agreed to pay. The bill prays substantially the same relief as the original bill, except that by reason of the home farm and the Iowa lands having been conveyed to innocent purchasers by appellant, it prays appellant be decreed to pay appellee the value of his interest therein in money.

Exceptions were filed by appellant to this report, and after hearing arguments upon them the court referred the cause back to the master, with directions to make more specific findings, and with leave to take further evidence. Thereafter further evidence evidence was heard by the master, and at the March term, 1909, he filed a second report. In this report the master substantially repeated his former finding that the deed was procured by fraudulent and false representations made by appellant to appellee as to the value of the estate of their father and of the indebtedness of appellee and his former wife to said estate, and that the consideration for the conveyances was grossly inadequate. The master found that the indebtedness of appellee and his former wife, including principal and interest, amounted to $12,751.81, and that upon a settlement of the estate appellee was entitled to $2,125.30 as his share of the personal estate, which would leave him actually owing the estate $10,626.51; that this sum, together with the $500 paid by appellant at the time the deeds were made, was the full consideration agreed to be paid for said conveyances. The master further found that the total value of all the lands of the estate at the time the deeds were made was $72,400, and that the interest of appellee in the land at that time was $15,400. He further found that appellee's interest in the rents collected by appellant up to December 3, 1903, after deducting costs and expenses, was $3,680.51, making the total value of appellee's interest in the lands, and the rent up to that time, $19,080.92, and that the consideration agreed to be paid by appellant for appellee's interest was the $500 cash paid and the indebtedness of appellee and Edna Taylor to the estate, together amounting to $11,126.51. The master further found that the conveyances were obtained by appellant by fraud and misrepresentation and the flagrant abuse of confidential relations, and should be set aside and declared void.

Before exceptions which were filed by appellant to this report were heard he renewed his motions to set aside the default and for leave to answer the bill. These motions were denied, and at the June term, 1909, the cause Appellant moved to dismiss this bill on the was heard upon the exceptions to the mas- ground that it was repugnant to and contrater's report, and taken under advisement by dictory of the original bill, abandons the the court. At the November term, 1909, and ground taken in the original bill, and sets up before the court had rendered any decision, new ground for relief. This motion was appellee asked and was granted leave to file overruled, and appellant demurred to the an amended and supplemental bill. At the bill, assigning as grounds of demurrer subFebruary term, 1910, appellant demurred to stantially the same grounds set out in the the amended and supplemental bill, and the motion to dismiss, together with other reademurrer was sustained because the widow sons. The demurrer was overruled, and apwas not a proper party complainant. Ap- pellant answered the amended bill at the pellee thereupon asked and obtained leave November term, 1910. The answer denied

all the material allegations of the bill as to before the deeds were executed the next fraud and misrepresentation as to the value morning, and appellant then produced two of the estate and the amount of the indebtedness of appellee and Edna Taylor to the estate. Appellant also asked for the appointment of a special master. This was denied, and the cause re-referred to the master, with directions to take such further testimony as the parties might desire and to report his conclusions of law and fact. Under this order of re-reference appellant appeared before the master and testified at great length; his testimony as abstracted covering 60 pages. The third report of the master was not substantially different from the second report. Exceptions by appellant to the third report were overruled, and it was approved and confirmed.

deeds; one of them containing a description of the home farm, the other a description of the Iowa lands. The original bill alleges that appellee then read the deeds and agreed to sign them, that when they went to the notary public's office appellant produced two deeds, which appellee signed without again reading or examining, and the bill alleges that if he signed the deed conveying his interest in all the Illinois lands it was presented to him suddenly in place of the deed to the home farm, which he supposed it to be, and that he had never to his knowledge signed the deed appellant had placed on record, and which purported to be a conveyance of all appellee's interest in the Illinois lands. The amended bill sets out, with somewhat greater detail, the alleged fraudulent statements and representations of appellant as to

and the amount of the indebtedness of appellee and Edna Taylor; that he represented to appellee his interest in his father's estate was not worth $500, but in order to adjust and settle the affairs of said estate he offered to pay appellee that sum in cash and assume and pay the obligations of appellee and Edna Taylor to the estate, in consideration of which appellee executed the two deeds conveying all his interest in and to the estate of John H. Taylor, including the rents and profits and interest therefrom up to the time the deeds were made.

The decree finds that appellant misrepresented and deceived appellee as to the value of his father's estate and the amount of appellee's and Edna Taylor's indebtedness the value of the estate of John H. Taylor thereto, and took advantage of the confidential relation existing between him and appellee to fraudulently induce appellee to convey his interest in his father's estate to appellant for about $8,000 less than it was worth. It is therefore ordered that said deeds be set aside except as to the home farm and the Iowa lands and held as null and void; that appellee be reinvested with all his rights in said lands, except the home farm and Iowa lands, with a right to the rents and profits thereof, in so far as they had been taken by appellant. The decree further finds appellee is entitled to a partition of said premises and to an accounting as in said decree directed, and for the payment, in money, of the value of his interest in the home farm and the Iowa lands. This appeal is prosecuted from that decree.

Robert C. Morse and Charles E. Sturtz, both of Kewanee (Charles B. Marshall, of Rock Island, of counsel), for appellant. Nels F. Anderson and James H. Andrews, both of Kewanee, for appellee.

FARMER, J. (after stating the facts as above). [1] It is earnestly insisted that the court committed reversible error in permitting appellee to file an amended bill. The basis of this contention is that the amended bill is inconsistent with and contradictory of the original bill, alleges a different state of facts as a ground for recovery, and was not filed until after appellee had testified before the master in support of his bill. The original bill, after setting out the visit of appellant to appellee in California and the representations made by him as to the value of their father's estate and the amount of the indebtedness of appellee and Edna Taylor to said estate, alleges appellant offered to give appellee $500 and pay his and Edna Taylor's indebtedness for a conveyance of appellee's interest in the Iowa lands and the

[2] The original bill was not sworn to, but appellant contends that it should be treated upon this question the same as if it had been sworn to, because appellee testified fully in its support before the master, and did not again testify after the original bill was filed. We do not agree with this contention. But even if the rule applicable to the amendment of sworn bills applied, we think allowing the amendment could not be held to be reversible error. Section 37 of the act to regulate practice in courts of chancery authorizes courts to permit the amendment of bills upon such terms as may be deemed proper, so that neither party be surprised or unreasonably delayed thereby. It has always been held in this state, and generally, we believe, elsewhere, that amendments in chancery proceedings are largely within the discretion of the court. Such amendments are often necessary to the proper administration of justice, but the court may impose terms where deemed necessary. Senft v. Vanek. 209 Ill. 361, 70 N. E. 720; Gordon v. Reynolds, 114 Ill. 118, 28 N. E. 455; Booth v. Wiley, 102 Ill. 84; Hoyt v. Tuxbury, 70 Ill. 331.

[3-5] Amendments to bills not sworn to are allowed with greater liberality than to sworn bills. Where the bill is sworn to, a conplainant may be denied the right to amend by contradicting the facts sworn to, unless he can show the statement was a mistake.

of restoration before bringing suit is neces-, sented that the $500, and interest thereon, sary. These courts advert to the distinction, be deducted from the amount he might be so often lost sight of, between the equitable entitled to have decreed him as the value of remedy of rescission or cancellation, where his interest in the home farm and the Iowa the avoidance of the contract, with its in farm, and this the court did by its decree. dispensable adjunct of restoration, is accomplished by the decree of the court, and legal rescission, where the act of plaintiff in avoiding the contract reinvests him with his legal title or right to sue, and must therefore be accompanied with restitution of the thing received by him." In a note to the text it is stated that a careful examination of the cases where the general rule was applied and no reference made to any exception to it shows that the courts did not have their attention directed to the distinction between the legal and equitable. aspects of rescission. In Brown v. Norman, 65 Miss. 369, 4 South. 293, 7 Am. St. Rep. 663, in a well-considered case, the court explains the distinction between actions for rescission at law and in equity, in the application of the rule requiring an offer to place the defendant in statu quo before commencing the suit, and, reviewing authorities both American and English, holds it is not indispensable in suits in equity that the complainant offer to place the defendant in statu quo where it would not be inequitable to permit a rescission without such requirement. In Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215, the court holds that one who attempts to rescind a transaction on the ground of fraud is not required to restore that which in any event he would be entitled to retain. The exception, in equitable proceedings, to the general rule has been recognized by this court in Wenegar v. Bollenbach, 180 Ill. 222, 54 N. E. 192, and Harris v. Dumont, 207 Ill. 583, 69 N. E. 811.

The case of Rigdon v. Walcott, 141 Ill. 649, 31 N. E. 158, is typical of the cases in this court relied upon by appellant. Therein it was contended the bill brought the case within that class of cases wherein a tender was not required before suit brought, for the reason that the court could, by its decree, place the defendant in statu quo. The bill sought to rescind and cancel an agreement in consideration of which complainant had been paid $40,000 in cash. The court said the case made by the bill was not one where the defendant could be placed in statu quo by the decree; that the relief sought did not necessarily involve a money decree in complainant's favor, out of which the consideration paid him could be deducted and thus satisfied. In the case at bar the facts alleged in the bill, if sustained by the proof, would entitle appellee to a money decree in a much larger sum than he had received from appellant, and the court could by its decree, if the relief prayed was granted, as fully protect appellant as if he had been offered the return of the $500 before the bill was filed. Appellee, both by his

[8-10] It is also insisted that the allegations in the bill as to fraud and misrepresentations are not supported by the evidence, and that the decree is contrary to the weight of the testimony. What was said between appellant and appellee at the time the deeds were executed, and what representations were then made by appellant, is testified to only by appellant and appellee, and their testimony is in hopeless conflict. It was simply a question as to which one of them should be believed. The master believed appellee, and we are unable to say that he was not warranted in doing so. There is no controversy about the proposition that, as a part of the consideration for the deed, appellant agreed to assume and pay the liabilities of appellee and his former wife to the estate. There is a conflict in the testimony of appellant and appellee as to the amount of the indebtedness of appellee and Edna Taylor to the estate. Appellant testified the indebtedness was $3,800 more than appellee claimed and testified the amount was. This $3,800 was made up by a $2,000 note to the First National Bank of Galva, signed by appellee and his father (appellee's name appearing first on the note), the $1,500 recognizance paid by appellee's father, and $300 of smaller items. Among the notes of appellee held by his father was a note for $3,800, dated February 1, 1898, which was the day appellee left for the West. He testified that the $3,800 note covered the $2,000 to the Galva bank, the $1,500 recognizance, and $300 additional, the consideration for the $3,800 note being that appellee's father would pay the recognizance, the $2,000 note, and satisfy additional indebtedness of $300. Appellee testified appellant represented to him that his former wife had materially increased his indebtedness after he had left the state by borrowing from his father, so the indebtedness at that time amounted to about $23,000, that the lands of their father had depreciated in value since appellee left the state, and that the estate was not worth over $40,000 and had liabilities of about $20,000. Appellant denied making any such representations.

The master found that the indebtedness of appellee and Edna Taylor to the estate amounted, principal and interest, to $12,751.81 on the 3d day of December, 1903, and that judgment had been taken by appellant, as administrator, for said indebtedness. The master further found that the personal estate of John H. Taylor was worth at that time $12,751.81, and, deducting the widow's share of one-third, would leave $2,125.30 as the share of the personal estate appellee was entitled to, which, credited upon his and his