delivered the opinion of the court:
It will be seen from the foregoing statement of the issues made by the bill and answer, that the questions here involved are of fact rather than of law. There is a material variance between the allegations of the bill and the testimony of the complainant as to the agreement claimed to have been made between the parties. The bill alleges that Morrissey promised to purchase the indebtedness secured by the trust deed and allow Pankau to re-pay him when he (Pankau) became able, and all Morrissey would ask of him would be the principal sum of $3000 and interest thereon at ten per cent per annum, and when the debt was fully paid and discharged he, the said Morrissey, would release the trust deed and deliver to said Pankau the $3000 note. But Pankau himself testified that upon being informed that the land was advertised for sale he went to Morrissey, who said he would bid it in for him and when he got ready he could get it back. His language is: “Morrissey said he would buy it in for me. It was sold in the court house. I was there. I went with Mr. Morrissey. I understood he went to buy the place for me. He said he did not need the money and that he did not want the land. ' He said, T want the interest on my money.’ Mr. Morrissey bid on .the .land .and bought it. He bid it in for $3500.” The evidence therefore wholly fails to support the bill.
But aside from the question of variance, the clear preponderance of the testimony is against the claim of the complainant that there was an agreement or understanding between himself and Morrissey as to the purchase of the premises by the' latter. Even conceding that the complainant himself testified to such an agreement and that he was to some extent corroborated by his sons, who testified to conversations with Morrissey to the effect that he did not want the land but intended their father to have it upon the re-payment to him of the money which he had invested in it, that testimony is overcome by the facts and circumstances shown in evidence on behalf of the defendant. It will be conceded that the burden of proof was upon the complainant to make out his case by a preponderance of the -testimony. The documentary evidence in the record goes very far to disprove the allegations of the bill and establish the averments of the answer. The trustee’s deed of June 11, 1879, conveyed the property to the defendant in consideration of $3500, and it is fully established that the amount of the bid was paid by the defendant to the trustee. That deed was duly recorded on the day following the sale. The quit-claim deed, made shortly afterward, regular upon its face, was duly acknowledged and recorded in the recorder’s office of the county a day or two after it was executed. At the same time the complainant executed a lease to the defendant, by the terms of which he became a tenant, agreeing to pay certain rents for the use of the premises. It is true, the complainant says he did not understand that he was executing the quit-claim deed, and, as we understand his testimony, claims that the lease was made for the purpose of defeating his creditors; but the testimony of the defendant and that of William A. Day, who took the acknowledgment of the quit-claim deed and prepared the lease and was present when it was executed, is positive and to the effect that both transactions were entered into with a full understanding on the part of the complainant and without any fraudulent representations on the part of Morrissey or his attorney. These two witnesses also fully sustain the theory of the answer that the quit-claim deed was made in settlement of the foreclosure suit begun by the said Jesse M. Richards.
The uncontradicted proof of the complainant’s conduct from the time of the execution of the lease to the bringing of this suit can be explained only upon the theory that he understood that he occupied .the premises as the tenant of the defendant. Thus, Mr. B. C. Beech, a grain dealer in the city of Champaign, speaking of the farm in question, said: “I know the place. I bought grain from it for more than fifteen years. Pankau and son delivered the grain to my elevator. My custom was to confer with both Pankau and Morrissey before purchasing the grain raised on the farm. Part of the money for the grain was paid to Pankau and part to Morrissey. Prior to 1899 two-thirds went to Pankau and one-third to Morrissey; subsequent to 1899 three-fifths to Pankau and two-fifths to Morrissey. I have been on this farm several times, and Pankau showed me which crib of grain was his and which crib belonged to Morrissey. I always settled with Morrissey and Pankau on the basis aforesaid. Morrissey received two-fifths share of the oats of last year’s crop. About the time of the last season’s delivery of the oats from this farm from the machine, they (the Pankaus) said they did not want the oats sold as the matter was in controversy and thát they were making some claims on Morrissey. They claimed a conveyance, from what Pankau said, and that there was a controversy, and that they (the Pankaus) did not want the oats sold and settled for until this matter was settled. Subsequently they (the Pankaus) came in and sold more oats and directed me h> settle the same way as heretofore.” The evidence also clearly shows that the farm was kept up, during the running of the lease, by Morrissey. When the dwelling house was destroyed by fire, about February, 1904, Morrissey re-built it, and paid for material used in making other repairs upon the premises.
It can scarcely be conceived, under the facts and circumstances shown by this record, that a man of even inferior intelligence and ignorant of the English language could have remained oblivious to the fact that he was holding the land as a tenant and not as the owner. He may have indulged the hope that he would be allowed to re-purchase the land, but if he did so, on the evidence in this record it was without any'Contract or agreement which could be enforced. The land, at the time of the trustee’s sale, as shown by the evidence, was worth but little more than the amount of the indebtedness. Although the consideration stated in the deed from Richards to the complainant is $8000, the complainant himself fixed the value at that time at $40 an acre, and several of the witnesses say it was not worth to exceed $20 or $25 per acre. Its present value of $140 per acre has been the result of the general increase in the value of farm lands in that vicinity and also of the improvements placed thereon by the defendant. If, therefore, either of the parties can be said to have changed his attitude toward the property on account of its increased value, it would be the complainant, and not the defendant.
Our examination and consideration of the entire record has led us to the conclusion that the chancellor has properly decided the case, and that no other decree could have been reasonably pronounced without disregarding the weight of the testimony in the record:
The decree of the circuit court of Champaign county will therefore be affirmed.
Decree affirmed.