Ebert v. Gerding

Citations

• 116 Ill. 216
• 5 N.E. 591

Syllabus

<p>1. Fraud —impeaching decree for fraud in obtaining —effect of delay in taking default on bill to foreclose. The failure of a party seeking to foreclose a mortgage, to take the default of the mortgagor and his wife for over five years after service, does not show a fraudulent intent in taking a decree of foreclosure, especially when, during such period of time, the complainant is taking testimony upon issues raised by another defendant claiming a prior judgment lien.</p> <p>2. Witness—competency of a parly in suit by one defending as heir. On bill by the heirs of a mortgagor against the heirs of a mortgagee, to review and set aside the decree foreclosing the mortgage rendered during the life-' time of the mortgagors and mortgagees, one of the complainants, being one of the heirs of tie mortgagor, is not a competent witness to disprove the sheriff’s return of service of summons upon the mortgagor’s wife, which occurred in the lifetime of the ancestor of the defendants, the mortgagee.</p> <p>3. Mortgage—of a sale and conveyance under a power—whether to operate as a discharge of the mortgage, or only as an assignment of it. Where a mortgagee, under a power of sale, sold and conveyed the mortgaged premises to another, to enable the latter to raise money on the same for the former, there being nothing paid for the conveyance, and the mortgagee agreed with the mortgagor that the latter might redeem after such sale, it was held, that the mortgage was thereby virtually kept alive, and in equity the sale and conveyance by the mortgagee was to be treated as an assignment of the mortgage to the' grantee, who became the agent of the mortgagee.</p> <p>4. Same —junior incumbrancer discharging prior mortgage—right of subrogation—as to homestead, where it is released in the prior mortgage, but not in the other. Where a junior incurfibrancer, in order to protect his own security, is compelled to discharge a prior mortgage, he will in equity become subrogated to the rights of the h