McGinnis v. Fernandes

Citations

• 126 Ill. 228
• 19 N.E. 44

Syllabus

<p>1. Ejectment—deed as a mortgage—whether available in defense— remedy in equity. In an action of ejectment by the grantee in a deed absolute in form, against the grantor, the defendant can not show in defense that his deed was in fact a mortgage, only. In such case the defendant’s remedy is in equity, where he may enjoin the action at law, and show the true character of the deed.</p> <p>2. Same—as between landlord and tenant—notice to quit—demand of ' possession. Where a defendant in ejectment, who is_ a tenant of the plaintiff, repudiates the tenancy and claims title in fee, such action on the part of the tenant will'dispense with the necessity of a notice to quit, and the landlord may recover in ejectment, without any previous demand of possession. The saíne rule applies when the title claimed by the defendant is merely an equitable one.</p> <p>3. Statute oe Frauds—verbal contract—sale of land. A verbal contract within the condemnation of the Statute of Frauds, as, for the sale of land, can not be enforced in any way, either directly or indirectly, and can not be made either the ground of a demand or the ground of a defense.</p> <p>4. Instruction—must be based on evidence. An instruction based upon supposed facts the only evidence of which has been excluded from the jury, is properly refused.</p>