Field v. Brokaw

Citations

• 148 Ill. 654
• 37 N.E. 80

Syllabus

<p>1. Mortgage—by husband and wife—not material who was the original debtor. Where a mortgage given by a husband and wife on her land to secure an account for goods sold to one or both of them, there being no note given for the amount, recited that the indebtedness secured was that of the husband, and that he had agreed to pay the same, it was held, that it was immaterial whether the debt originally was that of the husband or the wife, as it was made the debt of the former by the mortgage, and that the validity of the mortgage did not depend upon the fact who was the original debtor.</p> <p>2. Same—foreclosure without the production of a note or bond. Where a mortgage given by a husband and wife recites an indebtedness of the former upon a book account, without any reference to a bond or promissory note as evidence of the indebtedness, it will be inferred, in the absence of sufficient evidence to the contrary, that no bond or note was given, and on bill to foreclose the mortgage a decree of foreclosure may be properly entered, without an order requiring the production of a bond or note. If the execution of a bond is not proved, a decree of sale may be entered without requiring its production.</p> <p>3. Limitation—mortgage securing a book account—written evidence of indebtedness. Where a mortgage given to secure an open book account recites, and by such recital admits, the indebtedness, its character and amount, and also recites an express promise of the mortgagor to pay the same, such recitals and admissions constitute, of themselves, written evidence of the indebtedness, so as to bring an action for its recovery within the limitation of ten years, as provided in section 16 of the Limitation law.</p> <p>4. Same—when statute begins to run against foreclosure. Although a mortgage may contain a power of sale in case of default in the payment of the money secured, or any part thereof, or of the interest, or any part thereof, according to the terms and effect of the agre