Medley v. Elliott

Citations

• 62 Ill. 532

Syllabus

<p>1. Limitation—-foreclosure. The grantees of a mortgagor are not protected in their title against a foreclosure of the mortgage duly recorded, by seven years possession and payment of taxes under the first section of the limitation law of 1839.</p> <p>2. Same. From the peculiar relation of mortgagor and mortgagee, and the fact that a purchaser from the former succeeds only to his rights, with notice of the incumbrance, and the consequent privity between the parties, the possession of such purchaser must be considered as in subordination to the mortgage, and not hostile; and it can not cease to be of that character until there is an open disclaimer of holding under it, and the assertion of a distinct title with the knowledge of the mortgagee.</p> <p>3. Same—character of possession. The possession required under the limitation law of 1839 must be adverse. It must be hostile in its inception, and so continue. It must be an actual, continued, visible, notorious, distinct, and hostile possession.</p> <p>4. Same—mortgage. The statute of limitations which bars the debt can alone bar the mortgage. Until the statutory bar of the debt is complete, an action of ejectment can be maintained, or the mortgage foreclosed by bill in chancery, or by scire facias.</p> <p>5. Mortgage—whose duty to pay taxes. It is the duty of the mortgagor, or his grantee, when in possession, to pay the taxes on the mortgaged premises ; and he can acquire no rights by the discharge of such duty. The mortgagee may well regard such payment as a protection of his interest.</p> <p>6. Same—interest of mortgagee. In equity, the mortgagee’s interest in the mortgaged premises is of a personal character similar to his interest in the debt secured. It is a mere chattel interest. The mortgage is only a charge upon land, and until foreclosure, or possession taken, it remains in the light of a chose in action. It is but an incident attached to a debt.</p> <p>7. Same—assignee of mortgage. The mortgage interest, as