Mulvey v. Johnson

Citations

• 90 Ill. 457

Syllabus

<p>1. Administration—limitation—decree when debt is barred. Where a bill to foreclose a deed of trust is filed against the administrator, widow and heirs of the deceased debtor and grantor, more than two years after the grant of letters of administration, the claim not having been exhibited within that time in the county court, and the bill not alleging the insufficiency of the mortgaged premises to satisfy the debt, nor asking for any decree against the administrator, it is error to render a decree against the administrator for any deficiency of payment by sale of the property, and award execution therefor. The decree of deficiency should be paid only out of any subsequently discovered assets, and should not award an execution.</p> <p>2. Limitation—when need not be pleaded. Where a bill to foreclose does not allege the insufficiency of the mortgaged premises or ask a decree against an administrator, who is made a party, for any deficiency, it is not necessary that the administrator should plead the two years limitation in defense in order to avail of its benefit.</p> <p>3. Chancery—preserving evidence in the record. A decree of foreclosure, so far as it allows a solicitor’s fee, under a clause in the mortgage, will be reversed, if the evidence on which it is allowed is not preserved in the record.</p>