Citizens' National Bank v. Dayton

Citations

• 116 Ill. 257
• 4 N.E. 492

Syllabus

<p>1. Mortgage—bill to foreclose by an administrator, and to reform the mortgage for mistake. On bill by the administrator of a deceased mortgagee to foreclose the mortgage, the court may not only enter a decree of foreclosure, but also, the bill being properly framed for that purpose, for the correction of a mistake in the mortgage as to the description of the mortgaged premises.</p> <p>2. Where a court of equity has acquired jurisdiction to foreclose a mortgage on behalf of the administrator of the deceased mortgagee, it will have jurisdiction to afford all incidental relief germane to the principal object of the bill. In such case a reformation of the mortgage to correct a mistake therein is merely incident to the principal relief asked.</p> <p>3. Same—release of mortgage—what will so operate—giving a new note. Where a mortgagee agreed to release a mortgage upon condition that the mortgagor should insure his life to secure the debt, which was never done, and a power of attorney was written upon the mortgage authorizing the recorder to enter satisfaction of the same, which was never delivered, but retained by the mortgagee, and a new note was taken and the old one marked cancelled, but not surrendered: Held, that this was not sufficient to show a release of the mortgage.</p> <p>4. The talcing of a new note will not operate to discharge the mortgage security for the debt. A mere change in the form of the evidence of the debt will not in any manner affect the lien created by a mortgage.</p> <p>5. Parties—on bill to foreclose mortgage—generally—and in ease of the death of the mortgagee. On bill to foreclose a mortgage, all persons having an interest, either legal or equitable, in the mortgaged premises, must be made parties; but the heirs of a deceased mortgagee, before a foreclosure or entry for condition broken, have no interest in the premises, and are not necessary, or even proper, parties to a bill by the administrator to foreclose the mortgage.</p> <p>6. Where