Himrod v. Gilman

Citations

• 147 Ill. 293
• 35 N.E. 373

Syllabus

<p>1. Deed of trust—presumption as to signature. On bill to foreclose a deed of trust given to secure the payment of the grantee’s notes therein described, when the deed is properly acknowledged and recorded, it will be presumed, in the absence of anything showing the contrary, that the execution of the genuine notes and deed of trust was cotemporaneous, and, both being genuine, that the person who signed the one signed the other.</p> <p>2. Where it is admitted that a party executed a deed of trust to secure the payment of his two notes given for the purchase money of the land described in the deed, in the absence of anything suggesting the contrary, the presumption will arise that the signature thereto was written by him. But such presumption may be overcome by evidence tending to show that the deed was not in fact signed by him in person.</p> <p>3. Handwriting—proof by comparison with other writing. It is well settled in this State that the genuineness of a signature can not be proved by comparing it with an admittedly genuine signature to papers or documents not in evidence in the case, and which are collateral to the issue, and therefore not admissible in evidence for other purposes.</p> <p>4. The genuineness or falsity of a disputed signature to a paper otherwise admissible in evidence, may be proved by comparison with a signature, admitted or proved to be genuine, to a paper which has been admitted in evidence under the issues.</p> <p>5. Assignment of mortgage—equitable defenses against assignee. The assignee of notes secured by mortgage, when he buys before their maturity, will take the mortgage as an incident of the debt, subject to the equitable defenses existing in favor of the mortgagor, but not subject to the latent equities of third persons in the subject involved in the assignment, of which he has had no notice. .</p> <p>6. Same—priority of equities. It is only when the equities are equal, that he whose equity was first obtained has the better right. S