Hitchcock v. Fortier

Citations

• 65 Ill. 239

Syllabus

<p>1. Vendor and vendee—-failure of title as a defense to suit for purchase money. Where a wife, having a claim to real estate, sold the same, her husband uniting with her in the conveyance, in which they covenanted that she was the sole heir of the party through whom she claimed to derive title, and that the grantors would warrant against all persons claiming through them; and it turned out the claim was invalid, so that the pur. chaser acquired no title through the conveyance, but no fraud was practiced upon him: Held, that, as the grantors were not guilty of any fraud, and made no covenants as to the title, the purchaser could not resist payment of his notes given for the purchase money on the ground that he acquired no title, and where the notes were secured by mortgage, those holding under him were in the same position.</p> <p>2. If the owner and occupant of land buys an outstanding claim there, to to avoid litigation, and gives back a mortgage, he may resist its payment if fraud has been practiced upon him, or if the vendor of the outstanding claim has entered into covenants that are broken; but if no fraud has been practiced, and no covenants made respecting the title, the mortgagor can not insist that the court shall order the sale only of such title as he acquired by his purchase.</p> <p>3. Deed—where a subsequently acquired title passes by. Where a party received a conveyance for land without covenants for title, and no fraud was practiced upon him, and gave back a mortgage containing full covenauts to secure the payment of the purchase money, and it proved that he acquired no title by his purchase, but he afterwards did acquire title to a portion of the premises from another source: Held, that the subsequently acquired title inured to the benefit of the mortgagee by virtue of the covenants in his mortgage, and was subject to be sold on foreclosure.</p> <p>4. Mortgage—mortgagee, or his assignee in possession, must account for rents. Where a senior mortgage