Barry v. Guild

Citations

• 126 Ill. 439
• 2 L.R.A. 334

Syllabus

<p>1. Assignment—defense in equity—as, on foreclosure. On the foreclosure of a mortgage by an assignee of the notes secured, the maker will have the same defense as if the suit was by the payee.</p> <p>2. Failure of consideration—as to purchase money—failure of title. The defense of failure of title, against a suit for the purchase money, is founded on the covenants in the deed of conveyance. If the deed is but a quitclaim, or contains covenants only against the acts of the grantor, the defense will be unavailing, in the absence of fraud, accident or mistake.</p> <p>3. Where the owner of land conveys it with covenants of warranty to another in trust for himself, and upon a sale procures his grantee to make a deed to the purchaser, with covenants only against the grantor’s own acts, the purchaser can not rely on the covenants in the first deed to defend against a suit for the purchase money, the presumption being that the purchaser gets such a title as he bought.</p> <p>4. Covenants fob title—rights of subsequent grantee. The grantee in a deed of conveyance can not claim the benefit of any covenants in the deeds to those from whom he takes, except those for quiet enjoyment and warranty, which run with the land.</p> <p>5. Same—covenant of warranty, and for quiet enjoyment. In an action upon the covenant for quiet enjoyment and warranty, the burden rests upon the plaintiff to show the breach of the same, and consequent damages, and the breach can only be shown by proof of an eviction, or its equivalent. There must be a union of acts of disturbance under lawful title, to constitute a breach of these covenants.</p> <p>6. Attorney’s fee—when allowable on foreclosure. Where a mortgage provides for a solicitor’s fee of $100 in a decree of foreclosure, the same may be allowed, although the mortgagee may himself sign the bill, if the proof shows he was, in fact, represented by other solicitors.</p>