Kilgour v. Crawford

Citations

• 51 Ill. 249

Syllabus

<p>1. Practice in chancery—what is compliance with a rule to answer. Under a general rule to answer by a certain day in term, a plea, answer or demurrer may be filed.</p> <p>3. Same—of a rule expiring in vacation. But it may well be doubted, whether it should be so held as to long rules expiring in vacation.</p> <p>3. Partition—decree must declare the rights and interests of the panties. In a suit for partition of lands, the bill stated that the premises were subject to a certain mortgage, executed to one of the defendants, and the answer of such mortgagor defendant also set up the mortgage; but on the hearing, neither the mortgage was put in evidence, nor any proof offered in regard to it, and in the decrees of partition and sale, which were subsequently entered, the court failed to make any mention of it: Held, that this was error; that the court should have passed upon the mortgage, in such manner as to have clearly defined the interest which would be acquired by a purchaser at the sale.</p> <p>4 Under such circumstances, a proper course would have been, to decree a sale of the premises discharged from the mortgage, and that the proceeds be brought into court. The court could then have entered a rule, directing the money to be paid over, as provided in the decree, should the mortgagor defendant fail, by a certain time, to make proof of the same, and the amount due thereon.</p> <p>5. In suits of this character, the statute not only requires all persons having either a present or contingent interest, to be made parties, but further requires the court, in its decree, to declare the rights and interests of all the parties.</p> <p>6. Same—counsel fees—when to be taxed as costs. The terms of the law of 1869, providing for the allowance of counsel fees, in proceedings for partition, are not mandatory, and the act should be construed as intending such taxation only in cases where the proceedings are amicable.</p>