Gartside v. Outley

Citations

• 58 Ill. 210

Syllabus

<p>1. Mortgage—mortgagee's right of entry—whether defeated by subsequent lease. A mortgagor can not, without the consent of the mortgagee, make a lease that will prevail against the mortgagee’s right of entry, on breach of condition.</p> <p>2. Same—entry of mortgagee terminates junior lease, Upon the entry of a mortgagee for condition broken, he has the right to treat a lessee of the mortgagor, whose lease is subsequent to the mortgage, as a trespasser, and may bring ejectment without notice.</p> <p>3. Same—acceptance of rent in such case, by mortgagee, creates tenancy by estoppel. The acceptance of rent by a mortgagee, after entry, from a tenant of the mortgagor, whose lease is subsequent to the mortgage, will create the relation of landlord and tenant by the doctrine of estoppel.</p> <p>4. It does not follow, however, that the tenancy thus created will be for the whole term of the original lease, and in the absence of contract operating as au estoppel for the whole term, the tenancy thus created would, by analogy to the case of a holding over after a term has expired, be deemed to be from year to year.</p> <p>5. Decrees—impeaching collaterally. A decree of foreclosure can not be assailed collaterally for irregularities in obtaining the same, or for errors in conducting the sale thereunder.</p> <p>6. Contract op lease—what amounts to. An instrument which conveys premises to the grantee for the purpose of mining coal, '• so long as there is coal to mine thereon,” and providing for a payment of bank rents therefor, and with a forfeiting clause in case of non-compliance with the terms of the instrument, is a lease.</p>