Akin v. Cassiday

Citations

• 105 Ill. 22
• 1882 Ill. LEXIS 230

Syllabus

<p>1. Decree—conditional—when inoperative. On bill to foreclose a mortgage, a cross-bill was filed seeking the cancellation of' the mortgage as a cloud upon the title, and a decree entered on the cross-bill finding the sum due on the mortgage, and requiring the mortgagee to release the mortgage on payment of that sum by a day named, and providing that if the payment was not made by that time, the cross-bill should stand dismissed. The money not having been paid, the court at the same term dismissed the cross-bill, and entered a decree of foreclosure: Held, that the amount found to be due in the two decrees could not be added together as the sum required to be paid,—that the first decree was conditional, and became inoperative on the failure to pay, and the cross-bill stood dismissed without any further order; but were it otherwise, the first decree was rendered inoperative by the second decree foreclosing the mortgage, and only the sum found in the last decree could be collected, with the interest and costs.</p> <p>2. Cross-bill—when not necessary. On bill to foreclose a mortgage given by a person claiming to be the conservator of an insane person, against his successor, the latter answered denying that the person executing the note and mortgage was the conservator of the insane person, and his authority to bind the estate, and also filed a cross-bill setting up the same facts as in the answer, but no new facts, and asking to have the noté and mortgage set aside and canceled: Held, that the cross-bill was improperly filed, and should have been dismissed had a motion been made for that purpose. The defence in the answer, if successful, would have barred all future claim under the mortgage, the same as a decree declaring it void.</p> <p>3. Appeal—when freehold is involved. A proceeding to foreclose a mortgage does not involve a freehold, and when the decree is for less - than $1000 no appeal lies from the Appellate Court affirming the decree of foreclosure to this cou