Mester v. Hauser

Citations

• 94 Ill. 433

Syllabus

<p>1. Ejectment—plaintiff must recover on his own title. If a plaintiff in ejectment recovers at all, it must be on the strength of his own title to the premises, and not upon any equities another party may have in the subject of the litigation.</p> <p>2. Same—attempt to recover under trust deed—of the defence. If the plaintiff seek to recover under a trust deed given to secure a debt, he can do so only upon the same principle a mortgagee can recover the mortgaged premises,—as a means of obtaining satisfaction of the indebtedness secured by the mortgage. And if it appear such indebtedness has been paid, or in any way barred or discharged, the right of entry as for condition broken will also be barred.</p> <p>3. So it is competent in such case for the defendant—the grantor in the trust deed—to show that usurious interest was reserved in respect of the debt secured by the trust deed, and paid to a sufficient amount to extinguish the debt so far as there was any legal claim.</p> <p>4. Witness—competency—party as a witness—capacity in which plaintiff sues. The trustee appointed in a deed of trust given to secure a debt in favor of another person, brought ejectment for the premises conveyed, assuming to sue “for the use of the executor” of the payee of the debt, who had died. It was held it could not properly be alleged that the plaintiff sued as trustee “of the heirs, devisees and legatees” of the payee of the debt, or for the “use of the executor,” in any such sense as would render the defendant—the grantor in the trust deed—incompetent as a witness in his own behalf. In such case it must be regarded that the plaintiff sues in his own right, as holding the legal title to the property, and it is not to be considered who may be equitably interested in the estate.</p> <p>5. Moreover, there was no evidence that there were any “ heirs, devisees or legatees” of the deceased payee, so it did not appear the trustee held any fiduciary character in respect to such persons; and s