Darst v. Bates

Citations

• 51 Ill. 439

Syllabus

<p>1. Deeds—time of execution—presumption. The date of a deed, in the absence of other proof, will be presumed to be the true date of its execution, and this, notwithstanding the deed may not have been acknowledged until afterwards.</p> <p>2. Mortgages—change of form of the debt. A junior mortgage was given to secure certain promissory notes, and the prior mortgagee released in favor of the junior mortgage: Held, that a subsequent change in the form of the debt by taking up the original notes and giving new notes instead, did not affect the lien of the junior mortgage; the debt still remained, so far as the debtors, the creditors, and the holder of the prior mortgage were concerned.</p> <p>3. Same—discharge of personal security. And where, in such case, the original notes secured by the junior mortgage were also secured by the endorsement of a third person, the mere change of the old notes for new ones without an endorser, or the rendering of a judgment on the substituted notes, could not, as between the parties to the arrangement, release the premises from the mortgage.</p> <p>4. Surety—of his rights before he is damnified. A mere guarantor of a promissory note, which is also secured by a deed of trust, can not insist upon a foreclosure and the payment of the money to him, without having paid the debt or been in any way damnified. He has no right of recovery, either at law or in equity, until he has discharged the debt.</p> <p>5. A mere surety, or person ultimately liable, can not sue and recover until he has paid the debt, or in some manner has been damnified.</p> <p>6. Parties—in chancery. The holder of a prior mortgage filed a bill to foreclose. A junior mortgage had been given, but it became a prior lien by virtue of a release by the prior mortgagee in favor of the junior mortgage. A guarantor of the notes secured by the latter mortgage, filed a cross bill to foreclose that mortgage, without having paid the notes or been in any way damnified: Held, that the gua