Fisher v. Milmine

Citations

• 94 Ill. 328

Syllabus

<p>1. Mortgage—mistake in name of one of firm. In ejectment the plaintiffs offered in evidence a mortgage to George Milmine and Edwin 0. Bodman to secure a debt due to the firm of Milmine & Bodman, which was objected to, and thereupon the plaintiffs proved that the mortgage was given to secure a debt due to the firm consisting of the plaintiffs, and that the scrivener when drawing the mortgage asked the mortgagor the given name of Bodman and ’.was understood to say it was Edwin C., and so the mortgage was drawn, his true name being Edward C., and it was delivered to the agent of the firm, and thereupon the court admitted the same in evidence: Held, that there was no error in this ruling.</p> <p>2. Same—when condition is broken. Where the condition of a mortgage, given to secure several notes maturing at different times, provides that if the mortgagor shall pay all said notes as the same shall become due, then the mortgage shall become null and void, a failure to pay any note when it falls due is a breach of the condition, and ejectment will lie upon the same by the mortgagee.</p> <p>3. Ejectment—outstanding title. A mortgagor, when sued in ejectment, can not set up a prior mortgage by him to another as an outstanding title. He is estopped to allege that such mortgage is of force against the plaintiff.</p>