McAllister v. Compton

Citations

• 71 Ill. 170

Syllabus

<p>Evidence—acts of parties, when inconsistent with their claim. In a proceeding to foreclose a mortgage, the mortgagor set up as a defense that the notes and mortgage were given merely to secure the performance of an agreement to conve3r to the mortgagee certain property, and were to be canceled when such conveyance was made, and that he made such conveyance, and therefore the consideration of the notes had failed. On the trial it appeared, that, after said notes and mortgage were executed, the mortgagor made three different contracts with the mortgagee, at three different times, in each of which contracts he' recognized the validity of these notes, and, in part, provided for their payment; that in performing these contracts he incurred great expense, knowing, at the time, that the only reimbursement he was to get was by way of credit on these notes, and that he, on one or more occasions, stated that he was performing these contracts to pay off this mortgage: Held, that whilst these facts were not absolutely conclusive against the defense set up, they could only be overcome by clear and satisfactory proof.</p>