Dyer v. Hopkins

Citations

• 112 Ill. 168

Syllabus

<p>1. Degree—how far conclusive in another suit—as to defences not interposed at the proper time. Adult defendants who have been duly served with process in a suit to foreclose a mortgage, and make no defences, but suffer the mortgaged premises to be sold and the time for redemption to pass, will be precluded by the decree in such case from afterward defeating the title derived under it by alleging the defences of usury and payment of the mortgage debt in a subsequent suit, unless they were prevented from ' defending by the complainant in the foreclosure suit. It is not enough that some other person induced them to make no defence.</p> <p>2. Witness—competency—against executor or devisees. A person having an undivided interest in fee in a tract of land, and also an estate of homestead therein, on a bill filed by him to set aside an adverse title against parties defending as executors and devisees, is not a competent witness to testify to statements and declarations of the testator in his lifetime, for the purpose of impeaching the title acquired by him to the land. Nor will he be rendered competent by any release or transfer of his interest made for that puipose, only.</p> <p>3. Error will not always reverse—as to decree not really affecting rights of parties. On a bill by heirs of a deceased mortgagor to set aside a foreclosure sale as having been made under a decree obtained by fraud, the devisees of the mortgagee and purchaser filed a cross-bill, under which a transfer of the defendant in the foreclosure suit to a third person, and a conveyance by the latter to such defendant’s wife, was set aside and the original bill dismissed: Held, if there was error in setting aside the deed under the cross-bill, it could work no injury, as the title of the mortgagor was divested by the foreclosure sale.</p>