Fetrow v. Merriwether

Citations

• 53 Ill. 275

Syllabus

<p>1. Mortgage—of the condition—when broken. Where a mortgage is given on lands, to secure the payment of certain promissory notes, conditioned, “ that if any of the notes prove to be insolvent or worthless, the mortgage is to be good and valid, otherwise to be null and void,” to constitute a breach of the condition, the notes, or some of them, must prove worthless. The mere non-payment of the notes does not constitute a breach.</p> <p>2. Mortgagee in possession—of his defense in ejectment. So in an action of ejectment by the grantee of the mortgagor, against a grantee of the mortgagee in possession, where the defendant relies upon the mortgage, with such a condition, to protect his possession, to make his defense availing he must show that the makers of the notes are insolvent, or the notes worthless, as otherwise the condition would not be broken.</p> <p>3. Consideration—not essential to support a deed. By a properly drawn deed, the title of the grantor of lands, whatever it may be, passes to the grantee, without reference to the consideration paid; and it is not a matter which concerns third persons, whether there was a full consideration paid or not, so long as it is not in fraud of their rights.</p> <p>4. Same—want of consideration in a deed by a mortgagor—rights of the mortgagee. And it in no wise concerns a mortgagee, that the mortgagor has subsequently conveyed the equity of redemption to a third person for a full consideration, or has conveyed it gratuitously, or for the purpose of hindering and delaying his creditors, as the conveyance of the equity of redemption could not, in the least, prejudice, hinder or delay him in a foreclosure.</p> <p>5. Fraudulent conveyance—who may question it—as between a mortgagee and mortgagor. So where a party, deriving title to land by deed from the grantee of the mortgagor, brought an action of ejectment against a person holding as assignee of the mortgagee, it was Jtdd, the defendant had no right to show that the subsequen