In the early case of Hunter v. Bilyeu, 30 Ill. 228, the court was called upon to reform a written agreement in relation to the sale of real estate by so amending the description of the subject matter as to include within it certain parcels or tracts of land which it was alleged had been omitted by the mutual mistake of the parties. In the opinion of the court by Mr. Justice Breese, the authorities bearing upon the subject, both English and American, were reviewed at length. It was there said, in answer to the contention that the contract was within the Statute of Frauds, that that statute had no application to such cases. The court, on page 248, summarizes the authorities and makes a concrete application of the rule to the facts before the court in the following language: "Here the bill is filed to reform this contract by inserting in it several tracts of land alleged to have been omitted from it by mistake, and parol evidence is relied on for such purpose, and when reformed, then the prayer is to decree a specific performance of the contract. This proof makes the contract different from what its words import, and adds to it and varies it very materially. It, in fact, makes a new and different contract; yet if the mistake is clearly established, which should give way? That rigid rule of the common law, or that power residing in a court of equity to correct mistakes? The strongest and most convincing evidence will be required before the common law rule is postponed and the power of the court exercised." It is true that in that case the relief prayed for was denied, but only because the proof failed to come up to the required degree of certainty. The doctrine of that case has been steadily adhered to by this court. (Kelly v. Trumble, 74 Ill. 428; Schwass v. Hershey, 125 id. 653; Dinwiddie v. Self, 145 id. 291; Koch v. Streuter, 218 id. 546.) These authorities also warrant a court of equity, in a proper case, to decree the reformation of a written contract and then decree that the same be specifically enforced as reformed.

The bill, on its face, states a case which entitles the appellant to the relief sought, from which it necessarily follows that the court erred in sustaining the demurrer thereto and in dismissing the bill.

The decree of the circuit court of Rock Island county is reversed and the cause remanded, with directions to overrule the demurrer, and for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded, with directions.

EMILY F. BRITTON, Appellant, vs. SARAH J. Esson et al. Appellees.

Opinion filed October 28, 1913-Rehearing denied Dec. 5, 1913.

I. DEEDS when deed should not be set aside at grantor's instance. A deed which is the voluntary act of the grantor, made entirely upon his own initiative, without the request, suggestion, influence or persuasion of any other person, and without even the previous knowledge of the grantee that the deed was to be made, cannot be set aside at the instance of the grantor merely because he is dissatisfied with the situation.

2. CONTRACTS-when contract will be set aside as unfairly obtained. A contract made by an old man ninety years of age, blind and in feeble health, by which he agreed to pay his daughter and her husband $200 a year for his support and at his death give his daughter promissory notes against her husband for $3156, will be set aside in equity, where it clearly appears the agreement was not what the old man desired to do but was what the daughter and her husband and a third party, who acted as a volunteer in adjusting the difficulties between the parties, desired him to do, there having been a demand by the old man to have the daughter surrender the notes, which he had given her to take care of, and a refusal by her, without right or justification, to surrender them until he entered into some agreement.

APPEAL from the Circuit Court of Kankakee county; the Hon. C. B. CAMPBELL, Judge, presiding.

LOUIS A. HEILE, and DYER & WHITTEMORE, for appellant.

GOWER, COOPER, HOBBIE & PARISH, for appellees.

Mr. JUSTICE DUNN delivered the opinion of the court: William Tate in his lifetime filed a bill against the appellees by which he sought to have set aside a conveyance of real estate which he had made to Sarah J. Esson and a written agreement in regard to personal property which he had made with her. He died during the pendency of the suit, leaving a will, which was admitted to probate, and the suit was revived in the name of the executrix of his will and the devisee and legatees under it. The bill was dismissed by the court, upon a hearing, for want of equity, and Emily F. Britton, who is the executrix as well as the residuary devisee and legatee, has appealed.

William Tate was born December 11, 1819. He died on February 2, 1912, having been for twenty years totally blind. He was married twice. The appellee Sarah J. Esson is his daughter, the only child of the second marriage. The appellant, Emily F. Britton, and her brother, George Tate, are the children of the first marriage. They live in Chicago. William Tate's home for many years before his death was in the village of Grant Park, in Kankakee county, where he owned the homestead in which he resided with his wife. His daughter and her husband, Samuel Esson, lived in the same village. Mrs. Tate died in August, 1907. At that time William Tate, besides the homestead, owned four promissory notes of Samuel Esson, amounting to $3150, bearing interest at five per cent, other promissory notes amounting to $2000, several hundred dollars in the bank, and the written obligation of Samuel Esson for $100 per annum, payable during Tate's life. These notes and other papers were in his possession and he kept them at his house. When Mrs. Tate was taken sick there was nobody to take care of her and her husband in their home, and a week before her death Mrs. Esson took both her father and mother to her own home, where they remained until Mrs.

Tate's death. Tate's house was thus left empty, and he directed Mrs. Esson, who knew where the papers were kept, to get them and take care of them for him. After Mrs. Tate's death he continued to live with the Essons under an agreement to pay them $200 a year, and this sum was paid by deduction from the interest they owed him. After his wife's death Tate was ill and had several "bad spells," as Mrs. Esson described them. After one of these, which occurred on October 12, 1907, six weeks after Mrs. Tate's death, he asked to have E. H. Buck, a notary public living in the country, called, and this was done. When he came, Tate told him that he wanted to deed his place to his daughter. The deed was prepared and executed and Buck took the acknowledgment and had the deed filed for record. A short time before May, 1910, Tate asked his daughter and her husband for their four notes for $3150, signed by Esson, which he had thus delivered to Mrs. Esson for safe keeping, but they refused to surrender them to him on the pretext that he had promised to give them the notes; that Mrs. Esson had done much more for her father than her half-brother and half-sister; that the latter would share in the proceeds of the notes if Esson had to pay them, and that it was not fair that they should do so. Tate consulted an attorney in Kankakee and caused a letter to be written to Esson and his wife demanding the surrender of the notes, but no attention was paid to it. Before consulting the attorney Tate had met on the street a neighbor, Jerome Clapsaddle, to whom he had spoken briefly about his trouble with the Essons. Now, after the attorney's demand proved unavailing, Tate again went to Clapsaddle and told him that he intended to leave the Essons. Clapsaddle dissuaded him from leaving at that time, advised him against litigation and finally arranged a meeting, at which were present Tate, the Essons, Clapsaddle and David Price. As a result of that interview Samuel Esson executed a new note to Tate for $3150, dated March

I, 1910, due five years after date and drawing five per cent interest. This note was delivered to Price and the following instruments were executed:

"This memoranda of agreement, made and entered into this 26th day of May, A. D. 1910, by and between Sarah J. Esson and William Tate, both of Grant Park, Illinois, witnesseth:

"That the said Sarah J. Esson agrees to take said William Tate into her home and carefully care for and provide for him all ordinary care and maintenance while he shall stay and make his home with her. And the said William Tate agrees to pay said Sarah J. Esson for such home, care and maintenance the sum of $200 per annum, to be paid as follows: $200 on the first (1) day of March of each and every year during the time he is being thus cared for, beginning with March 1, 1911. And as further compensation for such home and care, the said William Tate agrees to give to said Sarah J. Esson a certain promissory note now held in escrow by David Price, of Grant Park, Ill., said promissory note being for the sum of $3150, signed by Samuel Esson, bearing interest at five per cent per annum, said interest payable annually. Said note to be held by said David Price during the lifetime of said William Tate and at his death to be delivered to said Sarah J. Esson as her property, without any further instructions from said William Tate. And the said Sarah J. Esson also agrees to pay one-half of the necessary funeral expenses of said William Tate, provided his death takes place while he lives with her. "Dated this 26th day of May, 1912.

Witness to mark, Jerome Clapsaddle.

his

WILLIAM X TATE,

mark

SARAH J. ESSON.”

"GRANT PARK, ILLINOIS, May 26, 1910. "Received from William Tate one promissory note for the sum of $3150, said note being signed by Samuel Esson, Grant Park, Ill., and payable to said William Tate, dated March 1, 1910, and due in five years from date, with interest at five per cent per annum, interest payable annually. It is understood between said William Tate and David Price that said note is deposited in escrow, and is to be retained by said David Price during the lifetime of said William Tate and at his death to be delivered to Sarah J. Esson. Interest on said note to be collected annually, when due, by said David Price and by him paid to such parties as he, the said William Tate, shall direct. And also a certain obligation from Samuel Esson to William Tate whereby said Samuel Esson agrees to pay said William Tate the sum of $100 annually as long as said William Tate shall live. DAVID PRICE."