Irish v. Sharp

Citations

• 89 Ill. 261

Syllabus

<p>1. Parties. A bill to foreclose a mortgage should be brought in the name of the equitable owner of the notes, and not in the name of the payee for his use, but the objection that it is brought in the payee’s name, should be urged in the court below to afford an opportunity to obviate it by amendment.</p> <p>2. Purchaser—whether chargeable with mortgage of which he has no actual notice. The record of a mortgage, given by one having only an equitable title under a bond for a deed which is not recorded, is not notice to a subsequent purchaser of the legal title from one in possession of the land, as such purchaser’s title is not derived through the title of the mortgagor, and he will not take subject to the mortgage, although it is recorded.</p> <p>3. Where A, the owner of lots, sold the same to B, giving a bond for a deed upon payment, of the notes given for the purchase money, and B sold the same to G, assigning A’s bond for a deed, and taking C’s notes and mortgage on the lots securing their payment, which mortgage was duly recorded, and C afterwards sold the lots to D by transferring A’s bond to him, and A, on-the surrender of his bond given to B, made a warranty deed to D for the lots, who took immediate possession, and afterwards sold the property to E, who had no notice of the facts or of the existence of A’s bond or that C had been in possession, and paid the purchase money, it was held that E was not chargeable with notice of the equitable title of G from the record of his mortgage to D, the bond never having been recorded, and that the mortgage could not be foreclosed as against him. Had E known, when he purchased, that 0 was in possession when he sold to D, perhaps it would have been his duty to have searched the record and inquired what claim C had to justify his possession.</p> <p>4. Mortgage—what estate subject to. Although a bond for a deed to land may provide for a forfeiture for non-payment, yet if the vendor does not declare one, the holder under t