Camp v. Small

Citations

• 44 Ill. 37

Syllabus

<p>1. Pbactice—preserving evidence in record. It was assigned as error on foreclosure by scire facias, that the judgment greatly exceeded the principal and interest of the note. The note bore ten per cent interest, and was payable with exchange on New York. The record contained no evidence as to what the exchange amounted to. Held, that in the absence of such evidence the court would presume proof was made of the amount due for exchange.</p> <p>2. Pabties—foreclosure by scire facias. In foreclosing by scire facias the wife, if she signed the mortgage, is a proper and necessary party in order to bar her equity of redemption and right of dower.</p> <p>3. Scibe facias — who may foreclose by. Assignment of a note and mortgage does not prevent a foreclosure by scire facias in the name of the assignor for use of the assignee. The proceeding is on the mortgage, the legal right to which is in the mortgagee, and he alone can institute the proceeding.</p> <p>4 Pleading—demurrer, failure to abide by. If a party does not abide by his demurrer he cannot avail on error of any defect in the pleading.</p> <p>5. Same—what may be pleaded to scire facias. In a proceeding to foreclose by scire facias, no defense can be interposed except the defense of payment, discharge, release, satisfaction, or that the mortgage never was a valid lien on the land. Pleas of usury and non est factum are not proper.</p>