Locke v. Caldwell

Citations

• 91 Ill. 417

Syllabus

<p>1. Limitation—when a bar to equity of redemption. It is a well-settled general rule that twenty years’ possession by the mortgagee,' without account or acknowledgment of any subsisting mortgage, is a bar to the equity of redemption, unless the mortgagor can bring himself within the proviso in the Statute of Limitations.</p> <p>2. Same—when mortgage is barred. . It is the general rule that if the mortgagor, after forfeiture, has been permitted to retain possession for twenty years, the mortgage will be presumed to have been discharged, unless circumstances can be shown sufficiently strong to repel the presumption, as, payment of interest, a promise to pay, an acknowledgment by the mortgagor, and the like.</p> <p>3. Same—to bar right of redemption from mortgage. An actual and not a constructive possession by the mortgagee for the period of twenty years is necessary to bar the right to redeem from the mortgage. In general, the respective rights of mortgagee and mortgagor, with regard to foreclosure on the one hand and redemption on the other, are treated as mutual and reciprocal, so that when the one is barred so is the other. A mortgagor or his assignee Was allowed to redeem from the mortgage thirty-five years after condition broken, where the land remained wild and vacant until a year before bill filed, and, the right to redeem existing, it was also held that the right to foreclose the mortgage was not barred.</p> <p>4. Same—action on note, when defendant is out of State. Under the statute, except in the case of real or possessory actions, when the defendant shall be out of the State any time during which a suit may be brought, the action may be brought on his return to the State, and the time of his absence from the State shall not be taken as part of the time limited.</p> <p>5. Payment—presumption, from lapse of time. There can be no presumption of payment of a mortgage debt from lapse of time, so long as the time of limitation provided by statute for the case h