Campbell v. Benjamin

Citations

• 69 Ill. 244

Syllabus

<p>1. Evidence—when title is claimed under foreclosure, whether the dewee of sale m.ust he produced. Where a party who had acquired title to real estate under a sale, under a foreclosure of a mortgage given by himself and wife, the land belonging to the wife at the time of the execution of the mortgage, executed a deed of trust thereon, and afterwards sold and conveyed the same, and it appeared that, at the time of the foreclosure, the wife was dead, leaving an infant heir, who was made a party, with the father, to the suit to foreclose, and on bill to foreclose the deed of trust against the party giving the same and the party in possession, who had succeeded to such party’s title, and was claiming under it, and whc had also acquired the title claimed to be in the infant heir, such party in possession, in his answer, alleged that the sale under the foreclosure was fraudulent as to the infant heir, and that the father acquired the legal title to the premises in trust for the infant heir: Held, that this admission in the answer dispensed with the necessity of producing the decree of foreclosure, for the reason that, unless the decree ordered the sale of the infant’s interest, the father could not have acquired the legal title.</p> <p>2. Purchaser.—rights of one whose duty it was to heme paid the debt. Where a husband and wife executed a mortgage upon land of the latter, to secure a debt of the former, and after the death of the wife, leaving an infant heir, on sale under foreclosure of the mortgage the premises were purchased by a third party for the mortgagor, and who, on the same day he received his deed for the property, conveyed it to the mortgagor, who owed the debt, it was held, that if the sale had been attacked while the title was in the hands of the latter it might have been set aside, but as to a bona fide subsequent incumbrancer, holding under a deed of trust executed by the mortgagor, without notice of fraud in the sale, or unfair dealing on the part of th