delivered the opinion oe the Court.
This action was brought by appellant as plaintiff, against appellee as defendant, to recover damages for a breach of covenants against incumbrances, contained in a warranty deed of certain real estate in Highland Park, Cook county, made by appellee to appellant in the year 1877.
To the declaration, the defendant pleaded the general issue of non est factum, and also special pleas of a release under seal of the cause of action mentioned in the declaration, by the plaintiff to the defendant, executed June 10, 1890, for a valuable consideration.
General replications to the special pleas were filed, and upon issues joined, the cause was submitted to the court without a jury.
After the evidence had been heard, but before judgment, the appellant was given leave to file additional replications, setting up that the pleaded release was obtained by fraud, and averring that the fraud consisted in a concealment by appellee, in collusion with others, from appellant of the existence of the cause of action declared upon, of which they then knew, but he did not, by means of which concealment the appellant, by the appellee and those in collusion with him, was led to believe and did believe, that the release related only to matters and things involved in a certain chancery suit brought by appellee against appellant on June 3, 1890, and was procured and induced to sign said release.
The breach of covenant that was made to appear, arose from the foreclosure by a trustee’s sale, made in 1887, under a “ blanket ” trust deed in the nature of a mortgage, made by the Highland Park Building Company in 1875, covering the lots in question and other premises, the lien of which was prior to the title of appellee, and of which sale or foreclosure it does not appear that appellee knew until in March, 1890, nor that appellant had personal knowledge until in August, 1893, which was more than two years after the release in question was given.
Besides the transaction concerning the Highland Park lots, the parties seem to have had other relations concerning other real estate, and on said June 3, 1890, when appellant was in Chicago, he being a resident of London, England, the appellee filed a bill in equity for an accounting from him.
The appellant, at that time having trouble with one B. F. Jacobs concerning matters between themselves and others, which was in process of compromise when appellee’s bill for an accounting was filed, insisted with Jacobs that before he would go further in the pending negotiations for a settlement of such controversies, he, Jacobs, must procure an acquittance from appellee of all matters involved in his equity suit for an accounting, and for the beginning of which suit, Jacobs testified that the appellant held him responsible.
The result was, that without the personal participation of appellant, except to execute the paper, the following release was executed by both appellant and appellee :
“ This agreement and release, made between Edward 0. Mitchell, of Chicago, Illinois, and John W. Todd, of London, England, witnesseth:
That, whereas, there is a difference between the parties hereto respecting certain profits in some real estate transactions of said Todd in Chicago, Illinois.
And, whereas, said Mitchell has lately brought his action against said Todd for an accounting between himself and said Todd;
And, whereas, said parties hereto have compromised said differences:
Now, therefore, in consideration of said differences, and in further consideration of one dollar and other good and valuable considerations passing from said Todd to said Mitchell, and from said Mitchell to said Todd, the parties hereto do hereby forever release and discharge each other from any and all claims, demands, accounting, and from any and all profits, dealings, moneys, or other values whatever. And in consideration aforesaid, do hereby forever release and discharge each other from any and all claims and demands of any name and nature whatsoever which either may have against the other.
In witness whereof, said Edward G. Mitchell and John W. Todd have hereunto set their hands and seals, this 10th day of June, A. D. 1890.
Edward C. Mitchell, [Seal.]
J. W. Todd. [Seal.] ”
There does not seem to be much, if any, question but that in the negotiations which ensued between Jacobs and the appellee, and culminated in the release, the question of the liability of appellee to appellant upon appellee’s covenant against incumbrances contained in his deed to appellant, was talked of and considered, but from anything contained in this record, whatever the true fact may be, concerning which we should not, in view of other possible litigation between the parties, express an opinion, it is quite plain that appellant did not consider such question, for the reason that he was not actually informed until long afterward, that the title to the premises had failed, and hence did not know that he had any claim, because thereof, against appellee.
Much argument has been made upon the question whether Jacobs was the agent of the appellant in conducting the negotiations which culminated in the execution of the release and the dismissal of the suit in equity brought by appellee against the appellant, and whether the notice that Jacobs had of the right of action then existing in appellant against the appellee for the breach of covenant declared upon, constituted notice to the appellant which would bind him, but we do not deem it to be necessary to consider those questions, or others to the same point. Nor need we consider as to whether there was, or not, error in excluding offered evidence touching the question of fraud, further than to say that at the time the evidence was offered, there was no issue - of fraud presented by the pleadings. It was not until after all evidence was in, that the replications presenting that issue were filed, or asked to be filed, and it would seem that it should not be held to constitute error to exclude evidence that might tend to establish some issue not before the court, when upon the issues, as formed, it was not error.
The majority of the court feel that the case must be decided upon other grounds.
The fraud pleaded by the additional replication consisted in the concealment of a material circumstance known to the appellee, but unknown to the appellant, whereby appellant was induced to execute the release.
Such might be ground in equity for a reformation of the release so as to make it comply with what was in the contemplation of the parties at the time it was executed, or for an avoiding of it entirely. But we regard the release as constituting a perfect bar at law.
“ The rule is familiar, wherever the distinction between law and equity is preserved, that in a trial at law, fraud in-the execution of a deed may be given in evidence, as that, through misreading, or the substitution of one paper for another, or by other device and trickery, he was induced to seal it, believing, at the time, that he was sealing something else; but it can not be proved that the transactions which preceded and induced the execution of the deed were fraudulent. Where a party knowingly and voluntarily signs a deed, although he do so in violation of his duty and of the laws, or be induced thereto by the fraudulent contrivances of others, yet if it be such, upon its face, as will convey title, it can only be impeached and set aside, and parol evidence be received for that purpose, in a court of equity.” Windett v. Hurlbut, 115 Ill. 403; Johnson v. Wilson, 33 Ill. App. 639.
In the absence of reformation, or a setting aside of it because of fraud, or other sufficient ground, the terms of the release must control.' So long as it stands, the presumption is, in accordance with inflexible rules, that it speaks the intention of the parties to it, and they can not be permitted to contradict or change it by testifying as to what the intention of the paper was. Gardt v. Brown, 113 Ill. 475; Wood v. Clark, 121 Ill. 359.
Upon the record as it stands, the judgment of the Circuit Court must be affirmed.