Aholtz v. Zellar

Citations

• 88 Ill. 24

Syllabus

<p>1. Ejectment—legal titles, only, considered. Ejectment being an action at law, legal titles and rights alone can be considered and adjusted. If a party has equities, he must resort to a court of equity for their assertion.</p> <p>2. Same—right of recovery as between successive mortgagees. In ejectment, Avhere both parties are mortgagees, and they both claim from a common source, the party having the oldest mortgage, from the common mortgagor, who first forecloses and acquires a deed, must prevail, as having the paramount legal title. If the junior mortgagee has equitable rights, by not being made a party to the foreclosure, he must resort to a court of chancery.</p> <p>3. Same—new trial under the statute. The unsuccessful party in an action of ejectment, who has prayed an appeal to this court, which he never perfects, may take a new trial, under the statute, within one year, by paying the costs.</p>