Kilgour v. Gockley

Citations

• 83 Ill. 109

Syllabus

<p>1. Ejectment—assignee of mortgage in possession. The assignee of a mortgage, after condition broken, being in possession of the real estate mortgaged, and also being the holder of tile note secured by the mortgage and the assignee thereof, can defend his possession under the mortgage, in ejectment brought by the mortgagor or those claiming under him.</p> <p>2. Same—against whom, it lies. Ejectment can never be maintained against an occupant of real estate, so long as he is lawfully in possession.</p> <p>3. Mortgage—rights of assignee. Although the assignee of a mortgage upon real estate, and of the debt secured, may not be able to maintain an action at law, in his own name, by virtue of such assignment, yet, being the lawful owner of the note secured, he has the right to use all remedies necessary for its collection, in the name of the mortgagee, for his own use and benefit, including the remedy by ejectment, and also the taking of possession, upon default, as agent of the mortgagee.</p> <p>4. Jurisdiction — burden of proof, when decree finds facts giving it. Where the record, in a petition by an administrator for an order to sell land to pay debts, shows a finding by the court of the necessary facts to give jurisdiction, the burden of proof rests upon the party assailing the title thus acquired to show the court did not acquire jurisdiction, by clear and satisfactory evidence. The mere fact that papers were filed about a year before the decree entitled the same as the order of sale,'which fail to confer jurisdiction, will not overcome the evidence furnished by the recital in the record.</p> <p>5. Limitation—proviso in famor of infants construed. The provision in the Limitation Act of 1839, that it shall not extend to persons under the age of twenty-one years, “ provided such person shall commence an action to recover such lands within three years after the several disabilities ” therein enumerated shall cease to exist, has reference to the disability of minority