Brown v. Miner, Frost & Hubbard

Citations

• 128 Ill. 148
• 21 N.E. 223

Syllabus

<p>1. Ohawoebt—trial by jury—upon what issues. The statute of this State requires the submission to a jury of an issue arising upon the contest of a will on the ground of the alleged insanity of the testator, or of his want of mental capacity. The statute seems to be imperative in this respect.</p> <p>2. Where the question of the insanity of a defendant at the time of the execution of a note and mortgage is properly presented by the pleadings and by affidavit, the better practice is to submit that issue to a jury, if the chancellor is asked so to do. But under the statute, (Bev. Stat. chap. 22, sec. 40,) the duty of the court to submit such issue to a jury is discretionary, and not imperative.</p> <p>3. Same—recitalsin decree—how far conclusive. Where a decree in a case which was referred to the master to take and report the evidence, recites that the cause was heard on the bill, answers, replication, and also the proof taken and reported by the master, such recital can not be contradicted or overcome by the clerk’s certificate that there is no report of the master on the files.</p> <p>4. And where a decree recites the hearing of testimony in open court, and finds, from the evidence, the facts necessary to support the decree rendered, in the absence of a certificate of the evidence heard it will be presumed that there was sufficient evidence to warrant and sustain such finding.</p> <p>5. Same—relief under the general prayer. A bill to foreclose a mortgage before due, by its terms, averred the failure of the mortgagor to pay the taxes then due on the land, as one of the grounds for electing to hold the whole debt due. The bill set out the mortgage as a part thereof, and it showed a right to declare the whole debt due for a failure to pay interest, or taxes on the premises: Feld, that this was sufficient, under the general prayer for relief, to authorize a decree for the taxes paid by the mortgagee pendente lite, to protect the title to the mortgaged premises.</p> <p>