Emory v. Keighan

Citations

• 94 Ill. 543

Syllabus

<p>1. Mortgage—depends upon the debt it secures. The existence of the debt is essential to the life of the mortgage given to secure it, and when the debt has been paid, discharged, released, barred by the Statute of Limitations, or a judgment or decree is rendered in favor of the mortgagor in a proceeding to recover the debt, the mortgage is gone and has no longer any legal effect.</p> <p>2. Same—sate under, good if debt is.not barred. Where a sale of land was made under a power in a mortgage more than sixteen years after the debt became due, so that the debt was barred as to all the other makers of the note, but not as to the mortgagor, owing to his absence from the State, it was held, that as the note was at the time of the sale legally enforcible against the mortgagor, the sale was valid and passed title to the purchaser.</p> <p>3. Limitation—a personal defence. A plea of the bar of the Statute of Limitations is personal to the debtor, and can not be interposed by a stranger. But such a defence may be set up by an executor, administrator or heir when sued on the contract of the intestate or ancestor, or by a co-maker as surety on a contract.</p>